No 

No. 97-460

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 308

STATE OF MONTANA, 

Plaintiff & Respondent, 

vs.

JOHN LANNY LYNCH, 

Defendant & Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorable Michael C. Prezeau, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender Office, Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana; Joseph 

Thaggard, Elizabeth Horsman, Special Deputy County Attorneys, Helena, Montana

Submitted on Briefs: November 19, 1998

Decided: December 15, 1998

Filed:

__________________________________________

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Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. John Lanny Lynch (Lynch) appeals from his conviction in the District Court for 

the Nineteenth Judicial District, Lincoln County, of deliberate homicide, tampering 

with physical evidence and two counts of robbery and from the District Court's 

March 21, 1997 order denying his motion to suppress evidence. We reverse the 

District Court's order denying Lynch's motion to suppress. For that reason we also 

reverse Lynch's conviction and remand for further proceedings consistent with this 

opinion and for a new trial.

Background

¶2. Because we are remanding for a new trial, our recitation of the facts and 

procedural background of this case will be limited to that necessary to address the 

dispositive legal issue.

¶3. Lynch was charged with the criminal offenses of which he was ultimately 

convicted as a result of his alleged involvement in the death of Brian Carreiro 

(Carreiro). Carreiro, a Las Vegas, Nevada resident, disappeared while on a hunting 

trip in Lincoln County, Montana in August 1995. An investigation into Carreiro's 

disappearance by Las Vegas authorities implicated Lynch and Larry Pizzichiello 

(Pizzichiello), both of whom accompanied Carreiro from Las Vegas to Montana on 

the hunting trip. After some four months of investigation by the Las Vegas 

Metropolitan Police, the case was handed over to Montana authorities for further 

investigation and prosecution. Ultimately, Lynch and Pizzichiello were charged with 

Carreiro's death, and the two were tried separately.

¶4. As part of the Nevada investigation, the Clark County (Nevada) District Attorney 

applied for and received judicial authorization from the county district court to 

intercept wire or oral communications made from the residence telephones of Lynch 

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and Pizzichiello. As a result of these wiretaps, the Las Vegas investigators intercepted 

and recorded conversations between December 7, 1995, and January 11, 1996. The 

Nevada investigation was discontinued on January 9, 1996, once it was determined 

that Carreiro's death occurred in Montana. The Las Vegas police continued the 

wiretaps for sometime thereafter, however.

¶5. In the Montana prosecution, by a pretrial motion to suppress, Lynch objected to 

the State's use of this wiretap evidence and evidence flowing therefrom. Lynch 

argued that wiretap evidence is not admissible in Montana; that the wiretaps violated 

his right to counsel; that the wiretap application was faulty under Nevada law 

because it failed to establish probable cause; and that testimony of two State's 

witnesses, Gary Knight and Tony Guarino, was inadmissible as "fruit of the 

poisonous tree."

¶6. Lynch and the prosecution briefed this motion and, without hearing, the District 

Court denied the motion. In so ruling, the court rejected Lynch's arguments and, to 

the contrary, determined that Nevada law applied when the wiretaps were 

authorized and when the evidence from the wiretaps was obtained; that the wiretaps 

did not deny Lynch his right to counsel; that probable cause supported the 

application for and issuance of the wiretaps; and that, accordingly, the wiretap 

evidence as well as the testimony of Gary Knight and Tony Guarino "which could be 

said to flow from the wiretaps" would be admissible in Lynch's Montana trial.

¶7. At trial, the State offered the wiretap evidence and the testimony of Gary Knight 

and Tony Guarino against Lynch, and, as indicated, Lynch was convicted by the 

jury. This appeal followed.

Issues

¶8. Lynch raises the following three issues on appeal:

¶9. 1. Did the District Court err when it admitted the wiretap evidence obtained in 

Nevada in Lynch's Montana trial despite this State's constitutional and statutory 

prohibitions against non-consensual wiretap evidence?

¶10. 2. In the alternative, if the law of the situs state controls, then did the District 

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Court err when it utilized Montana law to find that the Nevada district court had 

probable cause to issue the wiretap warrant and ignored the Nevada and federal 

standards required for electronic surveillance.

¶11. 3. Did the District Court err when it admitted the wiretap evidence as nonhearsay evidence.

¶12. Because we hold that the trial court erred as a matter of Montana law in 

admitting the Nevada wiretap evidence, Issue 1 is dispositive, and it is unnecessary 

that we address Issues 2 and 3.

Discussion

¶13. Our standard of review of a district court's denial of a motion to suppress is 

whether the court's findings of fact are clearly erroneous and whether those findings 

were correctly applied as a matter of law. State v. Siegal (1997), 281 Mont. 250, 257, 

934 P.2d 176, 180, overruled in part by State v. Kuneff, 1998 MT 287, ___ P.2d ___, 55 

St.Rep. 1173 (citations omitted). Here, the facts pertaining to the dispositive legal 

issue are not in dispute. Rather, the question--whether wiretap evidence obtained in a 

sister state is admissible in a Montana criminal prosecution--is purely one of law over 

which our review is plenary.

¶14. We commence our analysis by noting that nearly two decades ago this Court 

ruled that since Montana had failed to adopt a statutory scheme permitting 

electronic surveillance which is at least as restrictive as that required by the 

regulations of Title III of the federal Omnibus Crime Control and Safe Streets Act of 

1968, 1968 U.S.C.C.A.N. (82 stat.) 2112, 2153 (Title III), state officials are prevented 

from non-consensual electronic monitoring of oral and wire communications. State v. 

Hanley (1979), 185 Mont. 459, 467-68, 605 P.2d 1087, 1091-92 (Hanley I). Accord State 

v. Hanley (1980), 186 Mont. 410, 419, 608 P.2d 104, 109 (Hanley II). In Hanley I, we 

also determined that neither the subsection (1)(c) exception to § 45-8-213, MCA, 

defining the criminal offense of violating privacy in communications, nor § 46-5-202, 

MCA [now § 46-5-221, MCA], setting forth the grounds for issuance of a search 

warrant, constituted a "statutory scheme" for electronic surveillance at least as 

restrictive as that required by the Title III regulations. Hanley I, 185 Mont. at 467-68, 

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605 P.2d at 1091-92.

¶15. To date, the Montana Legislature still has not adopted a statutory scheme at 

least as restrictive as the regulations of Title III for the non-consensual electronic 

monitoring of oral and wire communications.(1) Accordingly, the proscription 

against the use of this investigative tool and evidence obtained therefrom as 

articulated in Hanley I, remains the settled law of this State. Non-consensual 

wiretapping is not permitted in Montana and any such evidence obtained in Montana 

by public officials is not admissible in this State's courts.

¶16. The case at bar, however, presents a different, though related, issue--i.e., 

whether wiretap evidence obtained in a sister state by that state's public officials is 

admissible in a Montana criminal prosecution. Lynch maintains that it is not. In the 

alternative, Lynch argues if such evidence is admissible, the wiretaps at issue here 

did not comply with either Nevada law or federal law. To the contrary, the State and 

the trial court both take the position that the wiretap evidence is admissible and that 

the wiretaps were applied for and the electronic surveillance evidence obtained in 

compliance with the laws of Nevada.

¶17. We agree with Lynch's primary argument. Regardless of whether Nevada law 

meets the requirements of Title III and regardless of whether Nevada officials 

complied with their State's law and federal law in applying for the wiretaps and in 

obtaining the electronic surveillance evidence at issue, we determine that Montana 

law prohibiting the use of non-consensual wiretap evidence in this State's courts 

controls.

¶18. We reach this conclusion by application of conflicts of law principles. Framed in 

this context the question is: "Where evidence is obtained in a sister state by that 

state's officials, does Montana law or the sister state's law govern the admissibility of 

this evidence in a Montana court proceeding?" We addressed and answered this 

question in State v. Beach (1985), 217 Mont. 132, 705 P.2d 94.

¶19. Beach was arrested in Louisiana for contributing to the delinquency of minors. 

While in custody in that State he confessed to Louisiana authorities that he had 

murdered a woman in Montana. Beach, 217 Mont at 138,140, 705 P.2d at 98-99. In 

his Montana prosecution, Beach moved to suppress his confession arguing that it was 

obtained after he was denied his right under the "McNabb-Mallory"(2) rule to be 

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taken before a magistrate or judge to be arraigned and advised of his rights. This 

rule requires the exclusion of any confession obtained as a result of "unnecessary 

delay" in the initial appearance, and, in a modified form, was adopted by this Court 

in State v. Benbo (1977), 174 Mont. 252, 570 P.2d 894. Beach, 217 Mont. at 149, 705 

P.2d at 105. The trial court denied Beach's motion.

¶20. On appeal, this Court applied Montana statutory and case law to the underlying 

facts surrounding Beach's Louisiana custodial confession and affirmed the District 

Court's determination that the defendant's statements were voluntary, and, 

consequently, admissible in his Montana trial. Beach, 217 Mont. at 149-52, 705 P.2d 

at 105-07.

¶21. Of importance to our discussion in the instant case, we rejected the State's 

argument that Louisiana law governed the admissibility of Beach's confession in 

Montana. We stated:

The general rule is that, as to questions of evidence, the law of the forum controls, 16 Am.

Jur.2d, Conflict of Laws Section 131. This question is best characterized as being one of 

an application of the exclusionary rule, i.e. a rule of evidence. Thus Montana law should 

control. The State proposes that what actually is involved here is an application of 

substantive law, in which this Court should apply Louisiana law. This argument is not 

compelling for two reasons: first, the remedy requested by the defendant is not a remedy 

provided for by Louisiana law, but rather is a remedy provided by Montana evidence law; 

and secondly, we feel that whenever possible, defendants should be entitled to the fullest 

protection of Montana law when appearing in its courts.

Beach, 217 Mont. at 151, 705 P.2d at 106.

¶22. The same rule applies in the case at bar. In Lynch's Montana court proceedings, 

the admissibility of the wiretap evidence obtained in Nevada by Nevada authorities is 

governed, not by Nevada law, but by Montana law. As already pointed out, it is the 

settled law of this State that non-consensual wiretapping is not permitted in Montana 

and that the evidence obtained from wiretaps is not admissible in Montana courts. 

Therefore, under the Beach rule, evidence obtained from wiretaps is, likewise, not 

admissible in this State's courts notwithstanding that the evidence was obtained 

lawfully in a sister jurisdiction. As in Beach, by moving to suppress the Nevada 

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wiretap evidence, Lynch sought to take advantage of an exclusionary remedy based 

upon Montana evidence law. Since Lynch is being tried in Montana for crimes 

allegedly committed in this State he, like Beach, is entitled to the fullest protection of 

Montana law when appearing in its courts. The application of Montana law requires 

that the Nevada wiretap evidence and any evidence flowing therefrom be suppressed.

(3)

¶23. In reaching this conclusion, it is necessary that we address the State's arguments 

that the Beach rule should be limited to cases where evidence was obtained in 

violation of the procedures of both the forum state and the situs state. The State 

maintains that traditional conflicts of law analysis should not be utilized in the 

criminal context because the policies underlying the exclusionary rule for violation of 

forum law do not necessarily apply with the same force to violations of the law of 

another state, let alone to activity that is legally conducted in the foreign jurisdiction. 

We disagree.

¶24. First, we see no compelling reason to limit the application of the Beach rule as 

the State suggests. Traditional conflicts of law analysis is straightforward and is 

facially neutral. Application of the rule that, as to questions of evidence, the law of 

the forum controls, can work as easily in favor of a party as it can against the party. 

Our decision in Beach as to the voluntariness of the accused's confession, for 

example, was grounded in the proposition that Beach's statements did not violate 

Montana law. Beach, 217 Mont. at 149-52, 705 P.2d at 105-07. There, the State 

benefited from application of the rule.

¶25. Second, we acknowledge that the objective of the exclusionary rule is to punish 

illegal police conduct and that the efficacy of the rule may be attenuated when 

applied in Montana to evidence obtained in another jurisdiction by authorities over 

which Montana has no control. Nonetheless, we conclude that when viewed in the 

context of the evidentiary question which it is, Montana's paramount interest in 

affording defendants the fullest protection of Montana law when appearing in its 

courts and this State's clear prohibition against non-consensual electronic 

surveillance of oral and wire communications, must prevail. The rights and 

protections under Montana law enjoyed by persons accused of and prosecuted for 

crimes committed in this State would be significantly diminished if evidence, clearly 

inadmissible if obtained in Montana, could nevertheless be used against the 

defendant simply because it was fortuitously gathered in some other jurisdiction 

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where Montana's evidentiary laws did not apply. The character of the evidence is 

what is fundamentally at issue, not where or how it was obtained. And, the character

of the evidence is not changed simply because it was obtained in a different 

jurisdiction under different laws. Wiretap evidence is wiretap evidence, and, under 

Montana law, the use of such evidence in Montana courts is not permissible.

¶26. It is also necessary that we address our decision in State v. Coleman (1978), 177 

Mont. 1, 579 P.2d 732, cert. denied 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831. In 

that case, Coleman was arrested without a warrant in Idaho for a homicide 

committed in Montana. In his Montana prosecution he claimed that the Idaho 

authorities lacked probable cause for the arrest. We determined that probable cause 

did exist and, in reaching that conclusion, applied Idaho law citing the rule from 

Miller v. United States (1958), 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed. 2d 1332, that "[t]he 

legality of an arrest is determined by the law of the jurisdiction where the arrest was 

effected." Coleman, 177 Mont at 18-20, 579 P.2d at 743-44. 

¶27. Our decision in Beach did not refer to Coleman. These two cases are not 

inconsistent, however. As we have already stated, questions concerning evidence 

admissibility and exclusion typically involve procedural considerations which are 

determined by the law of the forum. See Beach, 217 Mont at 151, 705 P.2d at 106; 

Restatement (Second) of Conflict of Laws § 138 cmts. a and b (1971); Robert A. 

Leflar et al., American Conflicts Law, § 116 (4th ed. 1986). On the other hand, 

questions involving the formalities for and validity of an arrest typically involve 

consideration of the substantive law of the state where the arrest took place. See 

Miller, 357 U.S. at 305-06, 78 S.Ct. at 1193-94, and cases cited therein. Basic conflicts 

of laws principles require application of the forum state's laws to questions of 

procedure (Beach), while questions involving substance are determined by the law of 

the situs state (Coleman).

¶28. Finally, the State argues that even if the trial court erred in failing to grant the 

accused's motion to suppress the wiretap and derivative evidence, the defendant's 

substantial rights were not prejudiced. We cannot agree. The wiretap evidence 

directly implicated Lynch in Carreiro's murder and in the concealment of his body, 

and the jury may well have weighed this evidence heavily in its determination to 

convict him of the crimes charged.

¶29. We hold that the District Court erred as a matter of law in denying Lynch's 

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motion to suppress the Nevada wiretap evidence and evidence flowing therefrom and 

in admitting such evidence at Lynch's trial. As a consequence, Lynch's conviction is 

reversed and this cause is remanded for further proceedings consistent with this 

opinion and for a new trial.

¶30. Reversed and remanded.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

1. 1We do not address here the question of whether such a statutory scheme, if adopted, would pass muster under 

Montana's constitutional right of privacy, Article II, Section 10. See Siegal, 281 Mont. at 275-78, 934 P.2d at 191-

92. 

2. 2See McNabb v. United States (1943), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Mallory v. United States

(1957), 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. 

3. 3We make no attempt to define the scope of evidence in this case that may have flowed from the wiretap 

evidence. The trial court indicated that the testimony of state's witnesses Gary Knight and Tony Guarino might 

fall into this category but that such evidence might not be suppressible for other reasons. We conclude that 

determining what evidence is derivative of the wiretaps and, therefore suppressible, is best left to the trial court 

on remand following further proceedings on this question. 

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