State v. Goetz

• Citation: 191 P.3d 489,2008 MT 296
• Decision Date: 20 August 2008
• Docket Number: No. 05-676.,No. 05-539.,05-676.,05-539.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael Thaddeus GOETZ, Defendant and Appellant. State of Montana, Plaintiff and Respondent, v. Joseph Patrick Hamper, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

191 P.3d 489

2008 MT 296

STATE of Montana, Plaintiff and Respondent, v. Michael Thaddeus GOETZ, Defendant and Appellant.

State of Montana, Plaintiff and Respondent, v. Joseph Patrick Hamper, Defendant and Appellant.

No. 05-676.

No. 05-539.

Supreme Court of Montana.

Argued and Submitted July 19, 2006.

Decided August 20, 2008.

For Appellants: Peter B. Ohman (argued), Gallatin County Public Defender's Office, Bozeman, Montana, Brian K. Gallik (argued), Goetz, Gallik & Baldwin, P.C., Bozeman, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Jim Wheelis and Mark Mattioli (argued), Assistant Attorneys General, Helena, Montana, Marty Lambert, County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Michael Thaddeus Goetz (Goetz) and Joseph Patrick Hamper (Hamper) (collectively, the Defendants) appeal from the judgments entered by the Eighteenth Judicial District Court, Gallatin County, on their respective convictions for felony criminal distribution of dangerous drugs. Specifically, the Defendants challenge the District Court's denial of their motions to suppress evidence. We reverse and remand.

¶ 2 We address the following issue:

¶ 3 Were the Defendants' rights under Article II, Sections 10 and 11 of the Montana Constitution violated by the warrantless electronic monitoring and recording of their oneon-one conversations with confidential informants, notwithstanding the confidential informants' consent to the monitoring?

BACKGROUND

¶ 4 In light of the identical primary legal issue raised in these two appeals, we consolidated the cases for purposes of oral argument and resolution. The following sets forth the relevant factual and procedural background of the individual cases.

State v. Goetz

¶ 5 On May 19, 2004, Matt Collar (Collar), a detective with the Missouri River Drug Task Force (Task Force), made contact with Suzanne Trusler (Trusler), who previously had agreed to act as a confidential informant for the Task Force. Trusler informed Collar she had arranged to purchase a gram of methamphetamine from Goetz. Trusler then met with Collar and Detective Travis Swandal (Swandal) and allowed them to outfit her with a body wire receiving device. The detectives did not seek or obtain a search warrant authorizing use of the body wire. Collar gave Trusler $200 with which to purchase the drug. Trusler then went to Goetz's residence and purchased methamphetamine from him. The conversation between Goetz and Trusler during the drug transaction was monitored and recorded by the detectives via Trusler's body wire. Goetz was unaware of, and did not consent to, the electronic monitoring and recording of his conversation with Trusler.

¶ 6 The State of Montana (State) subsequently charged Goetz by information with the offense of felony criminal distribution of dangerous drugs. In the information, the State listed Collar and Swandal as witnesses to be called at trial. The State also advised Goetz that it intended to introduce the tape recording of his and Trusler's conversation, and a transcript of the recording, into evidence at trial. Goetz moved the District Court to suppress the evidence derived from the electronic monitoring and recording of the conversation on the basis that it violated his rights to privacy and to be free from unreasonable searches and seizures as guaranteed by Article II, Sections 10 and 11 of the Montana Constitution. The District Court held a hearing and subsequently denied the motion to suppress. Goetz then pled guilty to the charged offense, expressly reserving his right to appeal the District Court's denial of his suppression motion.

State v. Hamper

¶ 7 On August 4, 2004, Collar made contact with Chrystal White (White), who previously had agreed to act as a confidential informant with the Task Force. White informed Collar that she had arranged to purchase 1/8 ounce of marijuana for $50 from Hamper. White met with Collar and Swandal and allowed the detectives to outfit her with a body wire receiving device. Collar provided White with $50 to purchase the marijuana. White met Hamper in a parking lot and purchased marijuana from him. The drug transaction took place in White's vehicle and the conversation between White and Hamper was monitored and recorded by the detectives via White's body wire. The following day, White again contacted Collar and informed him she had arranged to purchase another 1/8 ounce of marijuana from Hamper for $50. White met with Collar and Swandal and again allowed them to outfit her with a body wire. White then went to Hamper's residence and purchased marijuana from him. Again, the conversation between White and Hamper regarding the drug transaction was electronically monitored and recorded by the detectives via White's body wire. The detectives did not seek or obtain search warrants authorizing the electronic monitoring or recording of either conversation. Hamper was unaware of, and did not consent to, the electronic monitoring and recording of either conversation.

¶ 8 The State subsequently charged Hamper by information with two counts of felony criminal distribution of dangerous drugs. The State indicated its intent to call Collar and Swandal as witnesses at trial, and also indicated its intent to introduce the recordings of the two conversations — and transcripts of those recordings — into evidence at trial. Hamper moved to suppress evidence obtained via the electronic monitoring and recording of the two conversations on the basis that it violated his rights to privacy and to be free from unreasonable searches and seizures as guaranteed by Article II, Sections 10 and 11 of the Montana Constitution. The District Court held a hearing and subsequently denied Hamper's motion to suppress. Hamper then pled guilty to the charged offenses, expressly reserving his right to appeal the denial of his suppression motion.

STANDARD OF REVIEW

¶ 9 We review a district court's denial of a criminal defendant's motion to suppress evidence to determine whether the court's findings of fact are clearly erroneous and its interpretation and application of the law correct. State v. Copelton, 2006 MT 182, ¶ 8, 333 Mont. 91, ¶ 8, 140 P.3d 1074, ¶ 8. Here, the parties do not dispute the District Court's relevant findings of fact. Consequently, we review only whether the court correctly interpreted and applied the law.

DISCUSSION

¶ 10 Were the Defendants' rights under Article II, Sections 10 and 11 of the Montana Constitution violated by the warrantless electronic monitoring and recording of their one-on-one conversations with confidential informants, notwithstanding the confidential informants' consent to the monitoring?

¶ 11 The Defendants' motions to suppress relied primarily on State v. Solis, 214 Mont. 310, 693 P.2d 518 (1984), in which this Court determined that the warrantless electronic monitoring and recording of the defendant's conversations with an undercover law enforcement officer violated the defendant's rights under Article II, Sections 10 and 11 of the Montana Constitution, notwithstanding the undercover officer's consent to the monitoring. The State countered that, under State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988), the electronic monitoring of a conversation between two people, with the consent of one of them, does not constitute a search subject to the search warrant requirement.

¶ 12 The District Court recognized the conflict between Solis and Brown, and noted our own observation, in State v. Hardaway, 2001 MT 252, ¶ 51, 307 Mont. 139, ¶ 51, 36 P.3d 900, ¶ 51, of jurisprudential inconsistencies in privacy law cases from the mid-1980s through the early 1990s. Determining stare decisis required the application of Brown, the District Court denied the motions to suppress. It concluded the Defendants did not have a reasonable expectation of privacy in their conversations with the confidential informants and, thus, the electronic monitoring of the conversations by use of body wire transmitting devices did not violate the Defendants' rights of privacy or to be free from unreasonable searches and seizures. The Defendants assert legal error.

¶ 13 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect citizens against unreasonable searches and seizures. The Defendants do not dispute that, pursuant to United States Supreme Court jurisprudence, warrantless electronic monitoring of face-to-face conversations, with the consent of one party to the conversation, does not constitute a search and, therefore, does not violate the Fourth Amendment. See e.g. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). They assert, however, that Article II, Sections 10 and 11 of the Montana Constitution afford citizens a greater right to privacy which, in turn, provides broader protection than the Fourth Amendment in situations involving searches and seizures occurring in private settings.

¶ 14 Article II, Section 10 of the Montana Constitution provides that "[t]he 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." Article II, Section 11 of the Montana Constitution provides that

[t]he 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.

We address Article II, Section 10 in conjunction with Article II, Section 11 in analyzing and resolving a search or seizure issue that specifically implicates the right to privacy. See e.g. Hardaway, ¶ 32; State v. Siegal, 281 Mont. 250, 264-65, 934 P.2d 176, 184-85 (1997) (overruled in...