State v. Helfrich, 14744

• Decision Date: 03 October 1979
• Docket Number: No. 14744,14744
• Citation: 600 P.2d 816,183 Mont. 484,36 St.Rep. 1763
• Parties: STATE of Montana, Plaintiff and Appellant, v. Richard HELFRICH, Defendant and Respondent.
• Court: Montana Supreme Court

Page 816

600 P.2d 816

183 Mont. 484

STATE of Montana, Plaintiff and Appellant, v. Richard HELFRICH, Defendant and Respondent.

No. 14744.

Supreme Court of Montana.

Submitted Sept. 12, 1979.

Decided Oct. 3, 1979.

Mike Greely, Atty. Gen., Helena, Donald E. White, County Atty., Gregory R. Todd, argued, Deputy County Atty., Bozeman, for plaintiff and appellant.

Goetz & Madden, James H. Goetz argued, Bozeman, for defendant and respondent.

SHEEHY, Justice.

The State of Montana appeals from an order of the Gallatin District Court granting defendant's motion to suppress all evidence resulting from an illegal search and seizure.

On July 25, 1978, Mildred Arnold telephoned the Gallatin County Sheriff's Office. She informed the answering officer that she observed what she thought was a number of marijuana plants growing in the yard of her neighbor, Richard Helfrich, in Willow Creek, Montana. A deputy was dispatched to investigate the matter. The yard was fenced and contained a "lush" garden, including tall sunflowers. After investigating and seeing no marijuana, the deputy closed the case.

On July 31, 1978, Arnold entered Helfrich's garden and took a sample of a leafy material. The next day, August 1, 1978, she took a sample to the Gallatin County Sheriff's Office where it was field tested positive for THC, the active ingredient in marijuana.

Later that same day, Gallatin County Sheriff officers went into the alley behind the Helfrich property, looked over the fence of the defendant and claimed to have spotted and subsequently photographed marijuana plants growing within a second enclosure constructed of wood and chicken wire.

On these facts, the officers obtained a search warrant from the Justice of the Peace. On August 3, 1978, the officers went to the Helfrich household and served the warrant on Helfrich's wife. As a result, a quantity of plant material alleged to be marijuana was pulled from the garden.

An information was filed on August 21, 1978, charging Helfrich with criminal sale of dangerous drugs. A suppression hearing was held on November 22, 1978. The District Court, by an order entered on December 4, 1978, suppressed all evidence oral and tangible, direct and indirect, resulting from the search and seizure. The court based its suppression order on faulty probable cause stemming from the illegal actions of Arnold. We affirm.

The State presents three issues for our review:

1. Whether the evidence must be suppressed according to current constitutional authority?

2. Does the exclusionary rule apply to cases in which evidence is illegally seized by a private person?

3. Was Mildred Arnold a constructive agent of the Gallatin County Sheriff's Office?

The 1972 Mont.Const., Art. II, § 11, states in pertinent part:

" . . . No warrant to search any place, or seize any person or thing shall issue . . . without probable cause . . . "

Section 46-5-202, MCA, states:

"Grounds for search warrant. Any judge may issue a search warrant upon the written application of any person, made under oath or affirmation before the judge, which:

" . . .

"(2) states facts sufficient to show probable cause for issuance of the warrant;"

State law requires that the decision as to the existence of probable cause be made on the basis of sufficient competent facts. According to the record, the application for a search warrant was premised on two factors: (1) photographs taken from the roadway abutting the respondent's property by a Gallatin County Sheriff's detective and (2) a sample of marijuana illegally obtained by an inquisitive neighbor.

No trace of marijuana was reported by the first officer who personally surveyed the area on July 25, 1978. In fact, the opposite conclusion was reached as is exemplified by the initial closure of the case. It is virtually impossible by careful scrutiny of the photographs alone to either locate, or identify any substance which would give credibility to the existence of marijuana. Only the sample from Mrs. Arnold affords any basis to support the allegation of the existence of marijuana on the Helfrich property.

The sample obtained by respondent's curious neighbor was obtained by means of illegal trespass upon the Helfrich property. As a result, the sample was tainted as being the fruit of an illegal invasion of respondent's right of privacy. Since the application and subsequent issuance of the search warrant were based in fact, solely on an illegally obtained sample, the issuance of the search warrant and the subsequent search itself were both improper and illegal. The evidence was properly suppressed by the District Court.

The State relies upon the rule enunciated in Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. That decision held illegally obtained evidence admissible under the Fourth Amendment when seized by a non-governmental agent who is not acting in concert with any governmental agency. We find the Montana Constitution affords an individual greater, explicit protection in this instance than is offered in the Fourth Amendment decision of the Burdeau Court. The 1972 Mont.Const., Art. II, §§ 10 and 11 provide:

"Section 10. Right of privacy. The right of individual privacy is essential to the wellbeing of a free society and shall not be infringed without the showing of a compelling state interest.

"Section 11. Searches and seizures. The 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."

The importance of the right of individual privacy to the framers of the Montana Constitution is obvious from these provisions and the transcript of the Montana Constitutional Convention. Transcript of Proceedings, Vol. VII, pp. 5179-5205 (1972). This Court has previously noted the significance of the explicit guarantee of the right to individual privacy contained in section 10, as no comparable provision exists in the United States Constitution. State v. Sawyer (1977), Mont., 571 P.2d 1131, 1133, 34 St.Rep. 1441, 1444; State v. Coburn (1974), 165 Mont. 488, 495, 530 P.2d 442, 446.

The framers of the 1972 Constitution indicated the right of individual privacy was significant whatever the source of the invasion. The delegate who introduced the proposed privacy section reflected these concerns:

" . . . Certainly, back in 1776, 1789, when they developed our bill of rights, the search and seizure provisions were enough, when a man's home was his castle and the state could not intrude upon this home without the procuring of a search warrant with probable cause being stated before a magistrate and a search warrant being issued. No other protection was necessary and this certainly was the greatest amount of protection that any free society has given its individuals. In that type of a society, of course, the neighbor was maybe three or four miles away. There was no real infringement upon the individual and his right of privacy. However, today we have observed an increasingly complex society and we know our area of privacy has decreased, decreased and decreased . . . " Tr. of the Montana Constitutional Convention, Vol. VII, pp....