State v. Mefford, DA 20-0330

Docket NºDA 20-0330
Citation2022 MT 185
Case DateSeptember 27, 2022
CourtUnited States State Supreme Court of Montana

2022 MT 185

STATE OF MONTANA, Plaintiff and Appellee,

BRADLEY MEFFORD, Defendant and Appellant.

No. DA 20-0330

Supreme Court of Montana

September 27, 2022

Submitted on Briefs: June 29, 2022

APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DC 18-183 Honorable Kurt Krueger, Presiding Judge

For Appellant:

Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana

Eileen Joyce, Butte-Silver Bow County Attorney, Samm Cox, Deputy County Attorney, Butte, Montana

For Amici American Civil Liberties Union Foundation of Montana and American Civil Liberties Union Foundation:

Alex Rate, ACLU of Montana Foundation, Missoula, Montana

Brett Max Kaufman, ACLU Foundation, New York, New York





¶1 Bradley Mefford appeals his conviction of Sexual Abuse of Children in the Montana Second Judicial District Court, Butte-Silver Bow County. Mefford asserts that the court should have suppressed the evidence his parole officer discovered when he conducted a warrantless search of Mefford's phone. He claims the officer's search was unreasonable because it exceeded the scope of Mefford's consent and because the parole officer lacked reasonable cause to conduct the additional search. Because the search exceeded the scope of any valid exception to the warrant requirement, we reverse.


¶2 In November 2016, Mefford was on parole from a 2006 Flathead County conviction for Criminal Possession with Intent to Distribute, Criminal Endangerment, and Assault with a Weapon. Mefford had been placed under the supervision of Butte Probation and Parole and was required to wear a Global Positioning System (GPS) monitor on his ankle and to adhere to a 10:00 p.m. curfew.

¶3 On November 26, 2016, Probation and Parole Officer Jake Miller observed through the GPS tracker that Mefford was in his apartment's parking lot after 10:00 p.m. Miller, along with Mefford's supervising officer Jerry Finley, conducted a home visit on November 29, 2016, to investigate Mefford's curfew violation. Mefford advised the officers that, because the service on his cellular phone was disconnected and he could access the internet only from his parking lot, he sat in his car to message his sixteen-year-old daughter through the Facebook Messenger application on his phone. Miller asked to


see Mefford's phone so he could verify his story, and Mefford gave him permission to use it. Mefford asked his girlfriend, with whom he lived, to get his phone from upstairs and give it to Miller. Mefford gave Miller his daughter's name and told him to look for their conversation on Facebook Messenger.

¶4 Miller opened Facebook Messenger and confirmed that Mefford was telling the truth-that he in fact was engaged in a Facebook Messenger conversation, with a person bearing the name Mefford provided, at the time that Mefford violated his curfew on November 26, 2016. He believed, however, that Mefford was messaging a woman older than his daughter, based on the person's profile picture on Facebook Messenger. Without asking any other questions, Miller opened the digital photo gallery application on Mefford's phone and discovered several photos depicting what he believed was child pornography. The officers detained Mefford and seized his phone. The Board of Pardons and Parole revoked Mefford's parole and returned him to the Montana State Prison to continue serving the active portion of his 2006 sentence.

¶5 Nearly a year later, Detective Sergeant Jeff Williams obtained a search warrant for the phone.[1] Williams turned the phone over to a forensic examiner, who determined that Mefford's phone contained approximately thirty images depicting child pornography or child erotica. The examiner also conducted a forensic extraction of the phone and


determined that the photos most likely were downloaded from a file-sharing website. In July 2018, the State charged Mefford with Sexual Abuse of Children, in violation of § 45-5-625(1)(e), MCA, for knowingly possessing a visual medium "in which a child is engaged in sexual conduct, actual or simulated."

¶6 Mefford moved to suppress the evidence and to dismiss the charge on the ground that Miller's search was unlawful because it exceeded the scope of Mefford's consent. The District Court held a suppression hearing. Miller testified that he requested permission to use Mefford's phone "to confirm his story of being on the phone." Miller said he opened the photo gallery to look for an image of Mefford's daughter and compare it to the profile picture of the person Mefford was messaging, to confirm that she actually was his daughter. Mefford testified that his consent was limited to the Facebook Messenger application: "I told him, just go to the Messenger app . . . you should be able to see the conversation and the time.... I consented to him opening the Messenger app for . . . my daughter, to view the conversation I was having." He added that he did not give Miller permission to search other areas of the phone; that Miller never asked him what his daughter looked like; and that Miller never asked Mefford if he could look through the photo gallery.

¶7 The District Court denied Mefford's motion, finding that Miller's warrantless search of the phone was a valid probationary search and that he did not exceed the scope of Mefford's consent when he opened the photo gallery application.[2] The case went to trial,


and a jury found Mefford guilty of Sexual Abuse of Children, under § 45-5-625(1)(e), MCA. The District Court sentenced Mefford to five years in the Montana State Prison, with no time suspended.


¶8 "We review the denial of a motion to suppress to determine whether the district court's findings of fact are clearly erroneous and whether its legal conclusions are correct." State v. Thomas, 2020 MT 222, ¶ 9, 401 Mont. 175, 471 P.3d 733 (citation omitted). "Findings of fact are clearly erroneous if not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if this Court's review leaves a definite or firm conviction a mistake has been made." Thomas, ¶ 9 (citation omitted).


¶9 Whether the District Court erroneously rejected Mefford's claim that his parole officer lacked a valid exception to the warrant requirement.

¶10 The Fourth Amendment to the United States Constitution and Article II, Section 11, of the Montana Constitution guarantee individuals the right to be free from unreasonable government searches. U.S. Const. amend. IV; Mont. Const. art. II, § 11; State v. Peoples, 2022 MT 4, ¶ 12, 407 Mont. 84, 502 P.3d 129; State v. Staker, 2021 MT 151, ¶ 10 n.9, 404 Mont. 307, 489 P.3d 489; Thomas, ¶ 13. Both the Fourth Amendment and Article II, Section 11, provide that no warrant shall issue absent probable cause and a particular


description of the place to be searched. U.S. Const. amend. IV; Mont. Const. art. II, § 11; Peoples, ¶ 15.

¶11 Apart from Article II, Section 11, and its federal counterpart, the Montana Constitution provides an express right to individual privacy against government intrusion. Mont. Const. art. II, § 10; State v. Smith, 2021 MT 324, ¶ 12, 407 Mont. 18, 501 P.3d 398. Article II, Section 10, states that "[t]he right of individual privacy . . . shall not be infringed without the showing of a compelling state interest." Mont. Const. art. II. § 10. "Together, Article II, Sections 10-11, provide a heightened state right to privacy, broader where applicable than the privacy protection provided under the Fourth and Fourteenth Amendments to the United States Constitution." Staker, ¶ 9 (citations omitted).

¶12 A "search" occurs, within the meaning of the United States and Montana Constitutions, when "government action intrudes or infringes upon an individual's reasonable expectation of privacy." Staker, ¶ 10; see also United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656 (1984) A "reasonable expectation of privacy" exists when "an individual has [(1)] a subjective expectation of privacy that is [(2)] objectively reasonable in society" Staker, ¶ 11 (citing Katz v United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516 (1967) (Harlan, J, concurring)) (other citations omitted). "Whether an individual had a subjective expectation of privacy, and whether such expectation was objectively reasonable in society, are mixed questions of fact and law under the totality of the circumstances of each case." Staker, ¶ 11 (citations omitted). If an individual demonstrates a reasonable expectation of privacy, thus triggering the protections of Article II, Sections 10 and 11, we turn to the nature of the State's intrusion


to determine whether the search was "reasonable under the circumstances." State v. Goetz, 2008 MT 296, ¶38, 345 Mont. 421, 191 P.3d 489.

¶13 Whether an individual had an actual, subjective expectation of privacy depends on various factors, including "the nature and circumstances of the location and setting at issue and the extent to which the subject overtly or implicitly assumed, considered, desired, or endeavored to ensure that the subject activity or information would remain concealed or undisclosed to others." Staker, ¶ 21 (citations omitted); see also Goetz, ¶ 29 ("What a person knowingly exposes to the public is not protected, but what an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.") (citations omitted). The determination necessarily depends on "the particular facts of the case." Goetz, ¶ 29.

¶14 Mefford maintains he had a subjective expectation of privacy in his phone's digital photo...

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