State v. Hyem
| Decision Date | 04 June 1981 |
| Docket Number | No. 80-364,80-364 |
| Citation | 630 P.2d 202,193 Mont. 51,38 St.Rep. 891 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Appellant, v. Dale HYEM and Cynthia Effinger, Defendants and Respondents. |
Mike Greely, Atty. Gen., Helena, Sheri Sprigg, argued, Asst. Atty. Gen., Helena, Pablo Perhacs, County Atty., argued, Red Lodge, for plaintiff and appellant.
Overfelt Law Firm, Billings, Gary Overfelt argued, Billings, Stacey & Jarussi, Billings, Gene Jarussi argued, Billings, for defendants and respondents.
The State of Montana appeals from an order of the District Court, Thirteenth Judicial District, Carbon County, granting defendants' motion to suppress all evidence resulting from an unreasonable search and seizure.
On February 25, 1980, defendants were charged with alternative counts of felony theft either having stolen a pair of Rossignol SM Equipe skis on January 12, 1980, or having possessed them on February 21, 1980, knowing that they were stolen. The charges arose when skis, belonging to Buzz Welch, were found in defendants' residence and seized by officers of the Carbon County sheriff's office pursuant to a search warrant issued by the local justice of the peace. The issuance of the warrant was based on affidavits of Welch, who said his skis had been stolen, and of Kurt Hallock and Jack Marcure, who stated they had seen the skis at defendants' rented home in Red Lodge, Montana. The circumstances surrounding the latter affiants' discovery must be closely scrutinized in this appeal.
The defendants and affiants were all employed in various capacities at Red Lodge Ski area. During the 1980 ski season, a rash of ski thefts were reported, including two thefts reported by Welch and Marcure. The skis reported stolen by Welch and Marcure were identical except in length, binding type and serial number. After discussing the missing skis with numerous acquaintances, Hallock formed the opinion that the skis were in the possession of the defendants at their rented home.
The defendants were tenants in a residence owned by Mr. Prather. The residence was listed for sale through the Marshall Real Estate Agency. The real estate agent in charge of selling the house was Barbara Marshall. Defendant Hyem was aware that she had keys to the house and had shown it to prospective purchasers in his absence.
In the off-season, Hallock and Marcure purchase and remodel old houses and had previously done business with Marshall. Aware that the house was on the market, they contacted Marshall and asked to be shown the house. Hallock testified that he wanted to tour the house both for business reasons and to search for the skis, while Marcure's sole purpose was to search for the stolen Rossignols.
At the hearing, only Hallock and Marshall were called as witnesses. Hallock testified that during inspection of the premises, Marcure dropped his sunglasses beside a bed, and then saw the skis thereunder. Marcure removed the skis halfway from under the bed and found that the serial number matched that of Welch's missing skis. Hallock stated that only by pulling the skis out from under the bed could the serial number and positive identification be ascertained. Hallock further testified that until Marcure pulled the skis out, he was unable to see any part of the skis.
Marshall testified that upon entering the house she admonished Hallock and Marcure not to touch any personal property contained therein. She further testified that her observation of the bedroom area disclosed that only the tips of the skis were visible beneath the bed.
After completing a tour of the house, Hallock and Marcure reported their discovery to the Carbon County attorney's office, which in turn applied for and received a search warrant.
On motion of defendants, the District Court agreed that the evidence had been obtained by an unreasonable search, and ordered the evidence suppressed. It is from that order that the State appeals.
The issues to be considered on appeal are: (1) Whether the citizen search violated the defendants' right of privacy; and, (2) Whether defendants consented to the search and thereby waived their right of privacy.
Montana's constitution must be read as a whole and its separate sections interpreted in relation to one another. Unlike the federal constitution, our constitution particularly provides for an individual's right of privacy in 1972 Mont.Const., Art. II, § 10, which states: "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."
Application of this right is as diverse as the components which make up a free ordered society. Inasmuch as a citizen's personality and thoughts are protected as private, so are a citizen's physical solitude and right to be let alone. Moreover, 1972 Mont.Const., Art. II, § 11, which mirrors the Fourth Amendment to the United States Constitution, states that:
(Emphasis added.)
A warrantless search is per se unreasonable, unless it falls within one of the defined exceptions to the warrant requirement. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Before the warrantless search, neither Hallock nor Marcure could have obtained a valid search warrant because they were not possessed of their own knowledge, or through demonstrably reliable informants, of facts sufficient to establish probable cause, an essential ground for the issuance of a warrant. Section 46-5-202(1)(b), MCA. This warrantless search does not fall within any of the exceptions to a warrant requirement, which exceptions arise out of exigent circumstances necessary to protect or preserve life or to avoid serious injury (see, Wayne v. U.S. (D.C.Cir.1963), 318 F.2d 205), or arise from the evanescent nature of the material seized. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
Since the warrantless search here was per se unreasonable, it was unconstitutional under our federal and state constitutions, and therefore unlawful. It violated the Fourth Amendment of the United States Constitution, and also 1972 Mont.Const., Art. II, § 11.
In addition, the warrantless search violated the defendants' rights of privacy under the 1972 Mont.Const., Art. II, § 10, which we have quoted previously. Here, rights of individual privacy were infringed without the showing of a compelling state interest. Since Hallock and Marcure were acting in their individual capacities, and not for the state, state action was not involved, and the searchers could never be in a position of showing a compelling state interest. Under the 1972 Montana Constitution, the only exception to the restriction against the invasion of individual privacy is a compelling state interest. The private parties here, acting on their own hook, could not establish a compelling state interest.
The right of individual privacy, the right to be secure in one's home, was prized in Montana even before the adoption of the 1972 Montana Constitution. In Welsh v. Roehm (1952), 125 Mont. 517, 241 P.2d 816, it was held valuable enough to support a verdict of punitive damages without general damages against the invaders of a tenants' possessory rights. In State v. Brecht (1971), 157 Mont. 264, 485 P.2d 47, this Court applied the exclusionary rule to a telephone conversation of the defendant, overheard by an interloper on an extension line. In that case, this Court found that the right of individual privacy was adequately expressed, though penumbrally, in 1889 Mont.Const., Art. 3, § 7, which read as follows:
In Brecht, it was pointed out that there cannot be a fictional difference between classes of citizens: those who are commanded to obey the constitution and those who are not. Our constitutional prohibition against unreasonable invasion of privacy applies to all persons, whether acting for the state or privately.
The policy to set a special store on the right of privacy was expressly enunciated in the 1972 Mont.Const., Art. II, § 10, and the implementation of that policy was continued by this Court, in State v. Helfrich (1979), Mont., 600 P.2d 816, 36 St.Rep. 1763. There we upheld the suppression of evidence gathered by a private citizen who entered a fenced garden to obtain a sample of growing marijuana, which the citizen turned over to the authorities. There was no showing in Helfrich, as there is no showing at the case at bar, that the private citizen was acting in concert with the police authorities. Nevertheless, we held the suppression of such evidence proper. Here, we have nearly the same situation, except that Hallock and Marcure gained entry to the defendants' rented premises on an ostensibly legitimate excuse, to view the real property as prospective purchasers. We cannot see that a citizen gaining entrance to otherwise private property by a ruse is in any better position to obtain incriminating evidence against a lawful possessor (as distinguished from a guest or licensee) of that property than one gaining entrance by trespass. The result in each case is the same invasion of the possessor's private property. Under...
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