STATE v VAN HAELE

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NO. 82-36 IN THE SUPREFE COURT OF THE STATE OF MONTANA 1982 THE STATE OF MONTANA, Plaintiff and Respondent, VS. THOMAS VAN HAELE, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Diane G. Barz, Judge presiding. Counsel of Record: For Appellant: Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, Montana Calvin Stacey argued, Billings, Montana For Respondent : Hon. Mike Greely, Attorney General, argued, Helena, Montana Harold F. Hanser, County Attorney, argued, Billings, Montana For Amicus Curiae: Mark \T. Murphy, County Prosecutor Services Bureau, Helena, Montana Submitted: May 20, 1982 L G 2 3 2982 U Filed: Decided: August 23, 1982 Chief J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion o f t h e Court. Mr. Defendant a p p e a l s from h i s c o n v i c t i o n of c r i m i n a l p o s s e s s i o n o f dangerous d r u g s w i t h i n t e n t t o s e l l i n v i o l a t i o n o f s e c t i o n 45-9-103, NCA. W reverse. e The f a c t s o f t h i s c a s e a r e u n c o n t r o v e r t e d . Robert and Mae W e s t f a l l w e r e t h e managers of Shurgard Mini S t o r a g e i n B i l l i n g s , Montana, a c o l l e c t i o n of s t o r a g e u n i t s which a r e r e n t e d o u t t o customers. I n J a n u a r y 1981, t h e W e s t f a l l s r e n t e d a u n i t t o d e f e n d a n t who i d e n t i f i e d h i m s e l f as " B i l l Hayes. I' O J u l y 31, 1981, a t c l o s i n g t i m e , d e f e n d a n t a r r i v e d n a t ~ h u r g a r dand was g i v e n p e r m i s s i o n t o go t o h i s u n i t . Because Mae W e s t f a l l had e a r l i e r i n s t r u c t e d a n o t h e r customer a (Bender) t o l o c k t h e g a t e when he l e f t , M e W e s t f a l l went t o i n f o r m Bender o f d e f e n d a n t ' s p r e s e n c e . A f t e r doing s o , s h e n o t i c e d t h e door t o d e f e n d a n t ' s u n i t was s h ~ and t wondered what h e was d o i n g , s i n c e t h e r e were no i n t e r i o r l i g h t s i n defendant's u n i t . Mrs. W e s t f a l l a l s o wanted t o know how much l o n g e r d e f e n d a n t w a s g o i n g t o be c n t h e premises. Mrs. W e s t f a l l walked t o t h e door o f d e f e n d a n t ' s u n i t , knocked and s a i d , "Hey, you i n t h e r e . " There was no r e s p o n s e s o s h e r e p e a t e d t h e p r o c e d u r e w i t h no r e s u l t . She t h e n opened t h e door and saw d e f e n d a n t s i t t i n g on t h e f l o o r , p o i n t i n g a gun a t h e r . She a l s o s a w two s u i t c a s e s on t h e f l o o r b e h i n d him b u t was u n a b l e t o d e s c r i b e them b e c a u s e o f t h e dimness of t h e room's i n t e r i o r . She t h e n y e l l e d f o r Bender, who t r i e d t o w r e s t l e t h e gun from defendant. Mrs. W e s t f a l l l e f t t o i n f o r m h e r husband whc i n turn called the police. The p o l i c e a r r i v e d a f t e r d e f e n d a n t had l e f t b u t t h e W e s t f a l l s informed them t h a t t h e y d i d n o t wish t o p r e s s any c h a r g e s a t t h a t t i m e . P u r s u a n t t o company p o l i c y , M r s . W e s t f a l l c a l l e d t h e Washington home o f f i c e on t h e n e x t working day and r e l a t e d t h e e v e n t s t o them. P e r s o n n e l a t t h e home o f f i c e s u g g e s t e d t h e W e s t f a l l s f i n d o u t what was i n t h e s u i t c a s e . M r . Westfall removed t h e h i n g e p i n s from t h e padlocked d o o r and e n t e r e d defendant's unit. H e opened one o f t h e s u i t c a s e s and saw a number of b o t t l e s o f p i l l s . H e a l s o opened a p u r s e l y i n g on t h e f l o o r which he found t o c o n t a i n s i l v e r w a r e . After c l o s i n g t h e s u i t c a s e , p u r s e and r e p l a c i n g t h e d o o r , I l k . W e s t f a l l c a l l e d t h e p o l i c e i n d i c a t i n g t h a t t h e y now wished t o p r e s s a s s a u l t charges. Based on t h e i n f o r m a t i o n p r o v i d e d by t h e W e s t f a l l s , t h e B i l l i n g s p o l i c e o b t a i n e d a s e a r c h w a r r a n t and s e i z e d t h e s u i t c a s e and p u r s e . The c o n t e n t s o f t h e s u i t c a s e s and p u r s e w e r e i n v e n t o r i e d , r e v e a l i n g w e l l o v e r 100 b o t t l e s of p i l l s and on August 8 , 1981, d e f e n d a n t was c h a r g e d w i t h c r i m i n a l p o s s e s s i o n o f dangerous d r u g s w i t h i n t e n t t o s e l l . Defendant p l e a d e d n o t g u i l t y and f i l e d a motion t o s u p p r e s s . The c o u r t d e n i e d t h e motion and, a f t e r a n o n j u r y t r i a l , s e n t e n c e d t h e d e f e n d a n t t o f i f t e e n y e a r s i n t h e Montana S t a t e P r i s o n and d e s i g n a t e d him a dangerous o f f e n d e r . Defendant a p p e a l s . Defendant raises two i s s u e s on a p p e a l which can be s t a t e d a s follows: 1. Whether t h e D i s t r i c t C o u r t e r r e d i n f a i l i n g t o suppress t h e evidence. 2. Whether t h e D i s t r i c t C o u r t e r r e d i n a d o p t i n g t h e S t a t e ' s proposed f i n d i n g s o f f a c t and c o n c l u s i o n s o f law. With r e g a r d t o t h e f i r s t i s s u e a p p e l l a n t a r g u e s t h a t Montana's p o s i t i o n on " c i t i z e n s e a r c h e s " mandates a r e v e r s a l , citing State v. Hyem (19811, - Mont. -, 630 P.2d 202, 38 St.Rep. 891; State v. Helfrich (1979), - Mon t . - 600 , P.2d 816, 36 St.Rep. 1763; State v. Coburn (1974), 165 Yont. 488, 530 P.2d 442; and State v. Rrecht (1971), 157 Nont. 264, 485 P.2d 47. These cases all stand for the proposition that evidence obtained by a private citizen in violation of another's constitutional rights is subject to the exclusionary rule and may not be admitted into evidence in a criminal trial in this state. The fact that Nontana's constitution explicitly guarantees an individual's right to privacy was a major factor of the Hyem and Helfrich decisions: "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. 1972 Montana Constitution, Article 11, Section 10. " The State concedes that, if we follow Hyem and its predecessors, the defendant's conviction must be reversed but argues that we should reverse those cases and allow evidence illegally obtained by private citizens to he admitted in a criminal trial. The State further argues that the exclusionary rule deterrence rationale (to deter police from violating other's constitutional rights by excluding the evidence) has no application to private citizens because they do not realize the evidence is suppressible. We decline to overrule our previous citizen search cases and reaffirm our position taken therein. We base our reasoning on the firm stance taken by the Montana Constitution guaranteeing an individual's right of privacy. Our holding today is also rooted in the concept of judicial integrity, i-e., the judicial system must not become an accomplice to constitutional violations by admitting evidence illegally obtained. It is clear from the seminal cases involving the exclusionary rule that judicial integrity was one of the main reasons fcr the exclusion of illegally obtained evidence. In Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.E~.* 652, the issue was whether evidence obtained unconstitutionally by government agents shculd have been admitted at trial. The Court found that it should not have been admitted and stated the following: "To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." 232 U.S. at 394, 34 S.Ct. at 345, 58 L.Ed. at 656. Later in Elkins v. United States (1960), 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the court outlawed the "silver platter doctrine" whereby evidence illegally obtained by state officers would be turned over to federal prosecutors in federal criminal trials. In so doing, the Court stated: "But there is another consideration--the imperative of judicial integrity. It was of this that Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spcke in Olmstead v. United States, 277 U.S. 438, at 469, 471, more than 30 years ago. 'For those who agree with me, ' said Mr. Justice Holmes, 'no distinction can he taken between the Government as prosecutor and the Government as judge.' 277 U.S., at 470. (Dissenting opinion.) 'In a government of laws,' said Mr. Justice Brandeis, 'existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the Government may commit crimes in order to secure the conviction of a private criminal--would be terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." 277 U.S. at 485. (Dissenting opinion.) 36Yu.s. at 222, 223, 80 S.Ct. at 1447, 4 L.Ed.2d at 1680-81. We said in Coburn, supra, in commenting on the above quote: "[Elnreasonable or illegal intrusions and used, knowingly accepted -- from the private sector by the government amount to an extension of the silver platter doctrine condemned by Elkins, particularly, when viewed in the light of judicial integrity emphasized in Elkins." (Emphasis in original.) 165 Mont.at 503, 530 P.2d at 450. The next landmark case in the development of the exclusionary rule was Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, which made the exclusionary rule binding in both state and federal cases. The concept of the judiciary remaining free from the taint of illegally seized evidence played a large part in the decision as revealed by the Court's concluding statement: "Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." 367 U.S. at 660 81 S.Ct. at 1694, 6 L.Ed.2d at 1093. See Terry v. Ohio (1968), 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, 901 ("A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur"). We find the following in McCormick on Evidence has this to say in che concluding paragraph in the section on evidence obtained by private individuals: "On balance, the factors - - seem to favor the imposition - - exclusionary - rule. of the Although the situation is distinguishable from that in Mapp, the distinction is nct of sufficient breadth to justify a drastic difference in the treatment of the resulting evidence. While the need to protect personal security from private as well as public invasicn is certainly an impcrtant factor, the is the of the controlling matter - - unfairness - use of the evidence -and - the degrading of --the judicial system that must necessarily -acconpany - - "(Emphasis that use. added. ) on McCormick - Evidence S 168, at 374. Here there were two methods used in unlawfully gaining access to defendant's rental unit. the Mr. Westfall removed for the first entry and cut hinge pins on the d o ~ r defendant's padlock off the door for the second. It is hard to imagine more blatant violations. It is uncontroverted here that the Westfalls had no idea that they would find any drugs in the suitcases. When Mrs. Westfall first knocked on and opened the door, the light was so dim that she could not describe the suitcases behind the defendant. Defendant's unit had no interior light and no windows and one needed to crawl in or out to enter or exit it. We note that defendant has already been convicted and sentenced on the assault charge for pointing the gun at Mrs. Westfall. To sanction the admission of the evidence gained in this unlawful manner by allowing its presentation in a criminal trial makes the courts of this state a party to violations of the constitutional rights of the defendant and runs afoul of any viable notion of judicial integrity as outlined in Coburn, supra. It is also undisputed in the case at bar that the defendant's right to privacy was violated. Defendant is guaranteed this right under Art. 11, g 10 of our state constitution, supra. Of the ten states expressly protecting privacy in their constitutions, only two (Alaska and Montanaj have privacy guarantees that stand alone in a separate section of the state constitution, A Right - Privacy of as of Law - -a Matter - State Constitutional - (1977), 5 Fla.St. L.Rev. 631, 690-701. Although the Alaska courts have apparently have interpreted their constitution to require state action to trigger the exclusionary rule, Allred v. State (Alaska 1976), 554 P.2d 411, 416, we believe the better approach is that followed in Brecht and its progeny, supra. Montana's privacy right is the most elegant and the most uncompromising of the various privacy statements. 5 Fla.St. L.Rev. at 738. Respondent contends that we should adopt the good faith approach to the exclusionary rule approved by the Fifth Circuit in United States v. Williams (5th Cir. 1980), 622 F.2d 830. We are not persuaded by this argument. As dis- cussed above, Montana's constitutional guarantee of privacy is expressed in the strongest terms of any state constitution in the country and we are not bound by federal interpretations from other circuits. Statistics show that most motions to suppress are concentrated in offenses involving narcotics, weapons and gambling (with one-half filed in crimes involving narcotics and weapons), persuasive evidence that the application of the exclusi~naryrule is ccncentrated in these few areas, Rule Studying t.he Exclusionary - -in Search and Seizure (1970), 37 Univ. of Chicago L.Rev. 665, 706. These circumstances usually arouse little if any public support or syrcpathy for the defendant whose rights are violated. However, in a different context, the question of the admission of illegally obtained evidence is less volatile. For example, say an employee of a bank breaks into another's safety deposit box and discovers a stolen watch, a clear constitutional violation. Are the rights of pusher or murderer any less than the watch thief's sinply because our society today views the latter crime as innocuous and less heinous? Our Constitution was not grounded on such shifting sand. To admit at a criminal trial evidence illegally obtained by private citizens is tc encourage a vigilante movement which has no redeeming social value in our society today. Moreover, many prosecutors in this state would refuse to base a charge or information on such evidence but there are some who persist in doing so. The State argues that by not allowing the fruits of an unlawful citizen's search into evidence, many would-be criminals are allowed to go free. However, two recent studies indicate that the exclusionary rule has a negligible effect in freeing defendants. One study surveyed nearly 3,000 cases in 38 United States Attorney's offices between July 1 and August 31, 1978. Only 1.3 percent had evidence suppressed because of Fourth Amendment violations and more than half of the defendants who successfully moved to suppress were convicted anyway, Comptroller General of the The of the Rule in United States, - Impact - - Exclusionary --- Federal Criminal Prosecutions, rep. no. 66D-79-45 (April 19, 1979). Another study found that less than one percent of all arrests were eliminated for no follow-up prosecution because of due process violations such as illegal searches and seizures, Frost Lucianovich & Cox, What Happens After Arrest? D.C. Art. for Law and Social Research, August 1977). (Wash. National figures show that only 2 percent of the total number of persom held for prosecution were charged with weapons or narcotics offenses, the crimes where the exclusionary rule is applied most often, 37 Univ. of Chicago L.Rev. at 681. In view of these facts, the State's argument that many criminals are set free because of suppression of illegally-seized evidence due to the exclusionary rule loses much of its force. Also, statistics covering twelve years of law enforcement activity in Cincinnati, Ohio, show that the adoption of the exclusionary rule had no apparent effect on arrests or convictions in narcotics, weapons and gambling offenses, 37 Univ. of Chicago L.Rev. at 707. Appellant argues that no probable cause existed to support the issuance of the search warrant in this case and it follows from what we have said above that we agree. The warrant was based on evidence illegally obtained by Mr. Westfall and the warrant was tainted thereby. See United States v. Crews (1980), 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537. Appellant's second issue relates to whether the District Court erred in adopting the State's proposed findings of fact and conclusicns of law. Appellant argues that this action violates the rule of law set forth in ~omaskiev. Tomaskie (1981), 38 St.Rep. 416. Mont . , 625 P.2d 536, The State concedes its proposed findings and conclusions were accepted by the District Court with only rninor changes. We note that subsequent to the ~ornaskiecase, this Court decided Jensen v. Jensen (1981), - Mont . , 631 P.22 700, 38 St.Rep. 1109, wherein we stated that such an adoption is not grounds for reversal if the findinqs and conclusions are sufficiently comprehensive and supported by the evidence. It is clear from what was said above that the District Court's decision is not supported by the evidence or the law and thus fails to comport with this standard. Reversed. ' i Chief Justice A bn~$, $ We concur: - Justices L L Y 4 4 Mr. Justice John C. Sheehy concurring: I agree most emphatically with the foregoing opinion. It is near an absolute that in this country and in this state a judicial system would condemn the admission of evidence secured by trespassers who here used methods usually employed by burglars to gain entrance into defendant's private domain. We were told in oral argument by the State that a decision favoring the defendant in this case would dampen the efforts of "Crimestoppers", a program designed to utilize informers in crime detection. I particularly reject that contention. "Crimestoppers" effort is having laudable effect. The Experience in the program shows that a good deal of the information developed comes from co-conspirators or co-criminals who for their own purposes or rewards turn to the law officers. The program certainly does not depend on private trespassers. Part of the funds given to support "Crimestoppers" comes from donations from the public. That public support would soon evaporate if indeed the result of the program was to turn our neighbors into vigilantes riding into our yards, garages, vaults and homes in search of tangible evidence of illegal activity. If, as the State argues "Crimestoppers" depends upon invasion by private trespassers for its ultimate success (I do not believe so), then the program must face the same problem facing the unlawfully-acting constable: may slip away. as the case develops the quarry There are more ways than one to bag a cat. Why use a bag with a large hole at the other end? The State concedes that if the evidence in this case had been produced by the same kinds of actions of police officers, no appellate court including the United States Supreme Court would condone admitting such evidence against the accused. The State was not asked, but it would also have to concede, that if the record here showed the police officers had colluded with the private trespassers to produce the evidence it would not be admissible. to this: So this case really comes down the State is asking us to reinstate for State purposes the "silver platter" arrangement condemned in Elkins v. United States (1960), 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. Another argument raised by the State is that a criminal trial is a "search for truth" and therefore courts should accept all evidence, notwithstanding taint, except for the weightiest policy considerations requiring exclusion. It is not new that assertions of high moral purpose have been posted as reasons for abusing persons or rights. Robin Hood stole from the rich to gave to the poor--but he, the original Hood, was stealing. Brutus was concerned that Julius Caesar might make himself a king--and so he stabbed his friend. Adolph Hitler convinced a race that their superior blood should be kept pure--and they joined in the Holocaust. These are extreme examples but they serve, The end does not always justify the means. Another argument made by the State is that the police in in this case are guilty of no wrongdoing. trespassers that acted illegally. new. It was the private Again the argument is not Adam tried to blame Eve when he was caught with the fruits of an illegal seizure. By accepting the fruits of the illegality the police have stripped themselves from any insulation from its illegality under our view of the law that they stand in the footpads of the trespassers. Finally, a word about the posture of this case on appeal. The defendant comes to us as an appellant, despite the earlier rulings of this Court clearly on his side. In other words, the prosecution and the District Court had chosen not to follow our clear direction on the state of the law in Montana on this matter. This may not be the case, but one day soon, it can be predicted, an innocent person will be falsely accused by a trespasser and the State will prosecute,and the county and state will be open to possible liability for wrongful prosecution. Sometimes it is smarter to follow the law even if one disagrees with it. Mr. Justice Frank B. Morrison, Jr., specially concurring: I concur in the result but dissent from the rationale. The majority opinion states: "It is also undisputed in the case at bar that the defendant's right to privacy was violated." I disagree. The Montana Constitution provides: "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." 1972 Montana Constitution, Article 11, Section 10. In a series of cases referred to in the majority opinion this Court has held that the privacy provision of the Montana Constitution proscribes private action as well as government action. Such an interpretation finds support in the position articulated by one delegate at the Montana Constitutional Convention but, in my opinion, is not supported in the language of the privacy section itself. Historically constitutions have been documents securing to private citizens certain fundamental rights against governmental intrusion. Constitutions should not regulate the conduct among the various private interests in our society. Such interests should be competed for in the political forum. Constitutional rights, which protect against the awesome power of the State, are embedded in granite tablet. Once declared, these fundamental rights remain secure unless successfully attacked by a cumbersome constitutional amendment process. This process of amendment has never produced a restriction of rights. Once initially constitutionally rooted these fundamental declarations have become permanent. In my view, the rights and obligations among our people should be fought for at the ballot box, lobbied for in the legislative process, and clarified through litigation arising and culminating in the judicial branch. Competing concerns of private individuals are not entitled to constitutional permanency, but should be continually grappled with in a political forum where majority rule decides. The 1972 Montana Constitution expressly proscribes private action in the human rights provision. Constitution, Article 11, Section 4. 1972 Montana The delegates chose not to refer to private action in the privacy section. The courts should be reluctant to extend constitutional provisions beyond their stated purpose when the effect of such extension runs contrary to historical precedent and limits constitutionally the free action of private individuals. The interpretation indulged by the majority results in greater restriction for the individual than for the State. Government action invading privacy can be justified where a compelling state interest is shown. If the privacy intrusion is committed by an individual, seldom, if ever, could a compelling state interest be demonstrated. The result would be to allow the State more freedom of movement than would be allowed any private citizen. I cannot believe this accords with constitutional intent. The right to be free from undue meddling by anyone should properly be the subject of legislative action. Such privacy matters have been treated legislatively, i.e., credit reports are covered in Title 31, Chapter 3, MCA. Likewise, statutes protect against disclosure of a host of subjects including medical records, insurance information, accident reports, and information given to privileged sources. This writer feels that in this day of computerization and electronic eavesdropping more legislative attention should be directed toward protecting individual citizens from uninvited outside intrusion. The public policy questions inherent in such legislative action should be debated and resolved by the political structure. The constitution inhibits government, not private citizens. The strongest support for the majority decision involves application of the exclusionary rule on the basis of the "silver platter doctrine." As the majority notes, this doctrine prohibited the federal government from using evidence obtained illegally by state officers. At the time of the decision articulating the "silver platter doctrine" the Fourth Amendment to the United States Constitution did not apply to state officers and therefore, there was not a constitutional basis for excluding evidence which these officers obtained through illegal means. The evidence was handed by state officers to federal officers on a "silver platter." No illegal act was committed by federal officials in gathering the evidence. The exclusionary rule was applied by the United States Supreme Court though there could be no constitutional invasion by the state officers. The United States Supreme Court held that the evidence would be excluded because the federal prosecution, in using evidence illegally obtained by the State, became a lawbreaker and bred contempt for the law itself. As pointed out in the majority opinion, the United States Supreme Court in Elkins said in part: "If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face." (Citations omitted.) 364 U.S. at 223, 80 S.Ct. at 1447, 4 L.Ed.2d at 1681. In Coburn, also cited by majority, Justice Daly very logically noted: ". . . [Ulnreasonable or illegal intrusions andused, knowingly accepted -- from the pri~ate sector by the government amount to an extension of the silver platter doctrine condemned by Elkins, particularly when viewed in the light of judicial integrity emphasized in Elkins." (Emphasis in original) 163 Mont. at 503, 530 P.2d at 450. If the "silver platter doctrine" is to be recognized for the purpose of excluding evidence obtained by private individuals then, in my opinion, it should be confined to instances where the evidence was obtained in violation of criminal statutes thereby rendering the evidence "illegal." In this way judicial integrity is preserved by not judicially blessing the fruits of illegal activity. Such an application of the exclusionary rule would not be premised upon an invasion of the accused's constitutional rights. Rather, the exclusionary rule, as a rule of court procedure, would prevent the State from relying upon the illegal conduct of a private citizen. My position is thus being modified from that articulated in State v. Hyem (1981), , Mont. St.Rep. 891 (J. Morrison, dissenting). 630 P.2d 202, 38 In my judgment, only the State can violate the constitutional right of privacy of an individual. Nevertheless, if a private individual violates the penal statutes of this State and thus obtains evidence subsequently offered against an accused, the exclusionary rule should be applied to deny such tainted evidence admission. Therefore, I would vote to grant suppression of the evidence obtained in this case. I concur with the majority in remanding. Morrison " ' ! J u s t i c e J o h n Conway H a r r i s o n d i s s e n t i n g : Mr. T h i s C o u r t i n a s e r i e s o f o p i n i o n s commencing w i t h S t a t e v. supra, Jibwdc, B& T v. 1971, and ending with our latest case of State Hyem, s u p r a , 1 9 8 1 , h a s e s t a b l i s h e d t h a t t h e e x c l u s i o n a r y r u l e i s a p p l i c a b l e t o b o t h p u b l i c and p r i v a t e c i t i z e n s . However, as so a b l y n o t e d i n h i s d i s s e n t i n Hyem, ( s u p r a ) , J u s t i c e Morrison, Montana is t h e o n e s t a t e i n f i f t y t h a t h a s e x t e n d e d t h e e x c l u s i o n a r y r u l e to p r i v a t e a c t i o n s . This has, i n my o p i n i o n , c a u s e d c o n s i d e r a b l e p r o b l e m s w i t h i n t h e c r i m i n a l l a w f i e l d and w h i l e I have disagreed with the views of the majority from their i n c e p t i o n , my o n e and o n l y r e a s o n f o r s p e a k i n g o u t a g a i n i s i n expectation that a middle-ground a p p r o a c h c a n be made by this C o u r t i n some f u t u r e case t h a t w i l l n o t be q u i t e a s e x t e n s i v e a s our present rule. I would h o l d t h a t e v i d e n c e s h o u l d n o t be s u p p r e s s e d u n d e r t h e e x c l u s i o n a r y r u l e w h e r e i t is d i s c o v e r e d b y o f f i c e r s o r p r i v a t e p e r s o n s i n a c o u r s e o f a c t i o n s t h a t a r e t a k e n i n good f a i t h and in the reasonable, authorized. exists to though By r e c o g n i z i n g deter unreasonable, willful good mistaken, belief that they are t h a t the present exclusionary rule and f a i t h ones, flagrant actions by police, not p e r h a p s a n a m i c a b l e s o l u t i o n to t h i s p r o b l e m i n t h e l a w c a n be worked o u t . o u r cases b u t cases o u t s i d e t h i s j u r i s d i c t i o n , Examining n o t o n l y I a m of t h e opi- n i o n t h a t c o s t s t o s o c i e t y o f a p p l y i n g t h e p r e s e n t r u l e is beyond t h e p u r p o s e s f o r which it e x i s t s and a r e s i m p l y too h i g h a p r i c e t o pay. J u s t i c e Gene B. D a l y , who was u n a b l e t o a t t e n d t h e o r a l argument, did n o t p a r t i c i p a t e i n t h i s d e c i s i o n . Mr.

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