State v. Brackman

• Decision Date: 12 September 1978
• Docket Number: No. 13971,13971
• Citation: 35 St.Rep. 1103,178 Mont. 105,582 P.2d 1216
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Dale BRACKMAN, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1216

582 P.2d 1216

178 Mont. 105

The STATE of Montana, Plaintiff and Appellant, v. Dale BRACKMAN, Defendant and Respondent.

No. 13971.

Supreme Court of Montana.

Submitted May 4, 1978.

Decided Aug. 4, 1978.

Rehearing Denied Sept. 12, 1978.

Mike Greely, Atty. Gen. (argued), Brenda Gilmer, Asst. Atty. Gen. (argued), Helena, Charles Graveley, County Atty., Michael T. McCabe, Deputy County Atty. (argued), Helena, for plaintiff and appellant.

W. William Leaphart (argued), Helena, for defendant and respondent.

DALY, Justice.

Defendant Dale Brackman was charged in the District Court, Lewis and Clark County, with the felony offense of "intimidation". The District Court suppressed the state's evidence gained by electronic surveillance and the state appeals.

One Milsten and one Sherlock allegedly owed money to defendant. In December 1976, defendant became involved in a dispute with Milsten and Sherlock. He allegedly threatened them in regard to payment of this money. They reported these threats to the Lewis and Clark county attorney and to the Helena police department. On December 10, 1976, the Helena police placed an electronic monitoring device on Milsten and instructed him to go to the shopping center where defendant worked and engage defendant in further conversation concerning the money allegedly owed and the time within which to pay that money. Milsten and Sherlock talked to defendant in the parking lot of the shopping center.

Two members of the police department monitored Milsten's and Sherlock's conversation from an unmarked car parked a short distance from the shopping center. The police listened to and recorded the conversation. Milsten and Sherlock returned later that afternoon and engaged defendant in further conversation which was also monitored and recorded. No search warrant was ever obtained to monitor and record these conversations. It should be remembered this operation was fishing for evidence to charge a crime, and not supporting evidence of a crime.

Thereafter defendant Brackman was charged with the felony offense of intimidation in violation of section 94-5-203(1)(a), R.C.M. 1947. At his arraignment defendant pleaded not guilty. On January 24, 1977, District Court Judge Gordon R. Bennett assumed jurisdiction of the case.

Defendant filed a pretrial motion on April 12, 1977, to suppress the taped conversations and any transcriptions of the recorded conversations. The defense motion alleged the recordings were made in the absence of a search warrant and without the consent or knowledge of the defendant and that the monitoring and recording process thus violated defendant's Fourth, Fifth and Fourteenth Amendment rights under the United States Constitution, as well as his rights under Art. II, Sections 10, 11 and 25, 1972 Montana Constitution.

Briefs were submitted to the District Court. The court heard oral argument and took the matter under advisement.

On July 19, 1977, the District Court issued a memorandum and order suppressing the recorded conversations and their transcriptions. The state appealed and presents these issues:

1. Does the Fourth Amendment of the United States Constitution protect an individual's conversation from warrantless monitoring and recording by the state even though the state has the consent of the other party to the conversation?

2. Do Sections 10 and 11, of Article II, 1972 Montana Constitution protect the individual from monitoring and recording by the state without a search warrant or prior showing of compelling state interest the conversations between an individual and police informants where the informants consented to the monitoring and recording.

The District Court held the Fourth Amendment required that the tape recordings and their transcriptions be suppressed under the rationale in Katz v. United States, (1967), 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576, 583. It held the rationale in United States v. White, (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, was not applicable because it was decided on pre-Katz law and because it was a plurality opinion, and therefore, not binding precedent for future cases.

The state contends that White, not Katz, should be the controlling decision in this instance and that under White the tape recordings and their transcriptions are admissible.

Katz discarded the doctrines that electronic eavesdropping was permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the challenged evidence. In Katz, government agents without petitioner's consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded defendant's end of his telephone conversations. The court held the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance. The lack of physical intrusion into the telephone booth did not justify using electronic devices in listening to and recording Katz's words. (The government agents violated the privacy on which Katz justifiably relied while using the telephone in those circumstances.)

In White the issue was whether the Fourth Amendment barred from evidence the testimony of government agents who related certain conversations which occurred between the defendant and a government informant and which the agents overheard by monitoring a radio transmitter carried by the informant. In a Plurality opinion, Justice White held that the decision in White should be determined by pre-Katz law which held that the electronic surveillance involved did not violate White's right to be free from unreasonable searches and seizures. Relying on the court's decisions in On Lee v. United States, (1952), 343 U.S. 747, 751, 72 S.Ct. 967, 96 L.Ed. 1270; Lopez v. United States, (1963), 373 U.S. 427, 438, 83 S.Ct. 1381, 10 L.Ed.2d 462; Lewis v. United States, (1966), 385 U.S. 206, 209, 211, 87 S.Ct. 424, 426, 17 L.Ed.2d 312, 316; and Hoffa v. United States, (1966), 385 U.S. 293, 301, 302, 87 S.Ct. 408, 413, 414, 17 L.Ed.2d 374, 381, 382, Justice White held that the testimony of the government agents was admissible.

In On Lee, the defendant was charged with selling opium. While on bail before trial, an undercover agent approached On Lee in his laundry shop. The agent wore a transmitter which permitted a member of the narcotics bureau, also named Lee, to monitor the conversations from outside the shop. The defendant incriminated himself in his conversation with the undercover agent.

At trial, the undercover agent did not testify, but agent Lee testified as to the conversation he overheard. The defendant was subsequently convicted.

In affirming On Lee's conviction the Supreme Court held that neither the informant's nor the agent's conduct amounted to an unlawful search and seizure such as was proscribed by the Fourth Amendment. In support the Court cited Goldman v. United States, (1942), 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, where the Court held that the action of federal agents in placing a detectaphone on the outer wall of the defendant's hotel room and thereby overhearing conversations held within the room did not violate the Fourth Amendment.

In Lopez the defendant was convicted of attempting to bribe an IRS agent. During the attempts the IRS agent recorded his conversations with the defendant using a small recorder he carried in his pocket. On appeal the defendant urged that the recording of the conversations as well as the agent's testimony be suppressed.

The Court rejected the defendant's argument that the agent had unlawfully invaded his office. Additionally, the Court held that the case involved no "eavesdropping" in any proper sense of that term and stated:

"The Government did not use an electronic device to listen in on conversations it could not otherwise have heard.

" * * *ern

"Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. * * * We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording." 373 U.S. 439, 83 S.Ct. 1388, 10 L.Ed.2d 470, 471.

In Lewis a government agent obtained narcotics during transactions completed in defendant's home. The agent obtained entry by "misrepresenting his identity and stating his willingness to purchase narcotics." Although Lewis did not involve electronic surveillance, the defendant contended that in the absence of a warrant, any official intrusion upon the privacy of a home constitutes a Fourth Amendment violation and that the fact the suspect invited the intrusion cannot be held a waiver where the invitation was induced by fraud and deception.

The Lewis Court recognized that the various protections of the Bill of Rights provide checks upon official deception for the protection of the individual but that in Lewis the government did not overstep constitutional bounds. When the home becomes a market place for unlawful business, "that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street." Lewis v. United States, supra.

In Hoffa the petitioner was convicted of endeavoring to bribe members of a jury in a previous trial. Part of the testimony against Hoffa came from Edward Partin, a friend of Hoffa's who had become a government informer. Hoffa contended that Partin's failure to disclose his role as a government agent vitiated the consent that he gave to Partin's repeated entries to his room and that by listening to Hoffa's statements Partin conducted an illegal "search" for verbal evidence.

The Hoffa Court said the Fourth Amendment protects "the security a man relies upon when he places himself or his property within...