State v. Solis

• Decision Date: 31 December 1984
• Docket Number: No. 83-543,83-543
• Citation: 693 P.2d 518,41 St.Rep. 2493,214 Mont. 310
• Parties: STATE of Montana, Plaintiff and Appellant, v. George SOLIS, Defendant and Respondent.
• Court: Montana Supreme Court

Page 518

693 P.2d 518

214 Mont. 310

STATE of Montana, Plaintiff and Appellant, v. George SOLIS, Defendant and Respondent.

No. 83-543.

Supreme Court of Montana.

Submitted Oct. 29, 1984.

Decided Dec. 31, 1984.

Mike Greely, Atty. Gen., Jim Scheier, Asst. Atty. Gen., argued, Helena, J. Fred Bourdeau, County Atty., Charles Lucero, Deputy County Atty., argued, Great Falls, for plaintiff and appellant.

Jeffrey T. McAllister, argued, Great Falls, for defendant and respondent.

MORRISON, Justice.

On March 16, 1983, defendant George Solis was charged by information with one count of felony theft, in violation of Sec. 45-6-301(1)(a), MCA. Trial was twice scheduled and vacated at the prosecution's request before being rescheduled for Monday, October 3, 1983. The State filed a "Just notice" of other crimes evidence on Friday, September 30, 1983, together with a motion in limine to introduce a videotape. Defendant then filed a motion in limine on the morning of trial, objecting to the timeliness of the State's "Just notice" and the admission of the video tapes into evidence. Following an in-chambers hearing, the trial judge suppressed the videotape and postponed trial. On October 5, 1983, a written order was issued denying the prosecution's request to present evidence of other crimes and suppressing the videotape. The State appeals. We affirm the order of the District Court.

During the months of January and February 1983, the Cascade County Sheriff's office employed Jimmy Emmons, an undercover officer from Indiana, to act as proprietor of a pawnshop, Ma & Pa's Second Hand Store. As part of that operation and with Emmons' knowledge, Sheriff's officers made video recordings of the events which transpired.

Video recordings involving defendant were made on five separate occasions. On January 28, 1983, defendant sold necklaces to Emmons. On February 15, 1983, defendant sold nine cartons of cigarettes to Emmons and inquired as to Emmons' interest in some tires. Fifty minutes later, defendant returned, sold Emmons four B.F. Goodrich 8-ply tractor tires and told Emmons he could get more new tires. On February 18, 1983, the theft of four tractor tires matching the description of those sold to Emmons by defendant was reported.

On February 22, 1983, Emmons purchased from defendant six more tires for $140 on the condition that defendant take an I.O.U. for $100. Defendant discussed with Emmons his scheme to obtain twenty additional tires and a pending burglary charge against him. On February 24, 1983, defendant returned to collect his $100. Defendant was arrested during that visit and eventually charged with felony theft of the initial four tires he sold to Emmons.

All of those transactions were videotaped. However, neither the Cascade County Attorney's office nor the Cascade County Sheriff's office ever sought or obtained a search warrant prior to making any of the video recordings.

An omnibus hearing was held April 27, 1983, at which the prosecution represented that it did not intend to offer evidence of other offenses or acts under Rule 404(b), M.R.Evid. At that time, the prosecution intended to try Solis using Emmons' testimony regarding only the sale of the four tractor tires. Thereafter, Emmons' refusal to return to Montana to testify forced the cancellation of two scheduled trial dates. The Cascade County Attorney's office decided to try the case using the videotape and testimony of deputies who ran the taping machines. That decision prompted the September 30, 1983, "Just notice."

In its appeal of the October 5, 1983, order of the District Court, the State presents this Court with four issues:

1. Whether the defendant's right to privacy, as guaranteed by the Montana Constitution, was violated.

2. Whether the videotape evidence meets the substantive guidelines of admissibility established in Just?

3. Whether the prosecution complied with the procedural guidelines established in Just in notifying the defendant of its intent to offer evidence of other crimes, wrongs, or acts.

4. Whether the State waived its right to offer evidence of other crimes, wrongs, or acts.

Our resolution of issue one renders the remaining issues moot.

"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." Mont. Const. Art. II, Sec. 10.

We use a two-part test to determine whether an individual has a constitutionally protected right of privacy: (1) the individual must have either a subjective or an actual expectation of privacy; and (2) that expectation must be viewed by society as reasonable. The Missoulian v. Board of Regents of Higher Education (Mont.1984), 675 P.2d 962, 967, 41 St.Rep. 110, 116. Thus, the first point for resolution of this case is whether defendant exhibited an expectation of privacy during his conversations at the pawnshop and, if so, whether that expectation was reasonable.

Having viewed the videotapes, we find that defendant did exhibit an actual expectation of privacy. His conversations with Jimmy Emmons were held in a small, enclosed office. The only other individual present was an unidentified friend of defendant. Further, defendant's expectation of privacy was reasonable. There were no visible, separate areas from which other individuals may have overheard the conversations. Thus, it was not unreasonable for defendant to have expected no one but his unidentified friend and Emmons heard the conversations.

In support of its position, the State argues that our decision in State v. Coleman (Mont.1980), 616 P.2d 1090, 37 St.Rep. 1661, requires a determination in this instance that defendant had no reasonable expectation of privacy. We do not agree. In Coleman, we reaffirmed our position "that interception of telephone conversations by police officers is legal if one of the parties to the conversation consents, even an informer." Coleman, 616 P.2d at 1096. Likewise, argues the State, since Jimmy Emmons consented to the video recordings of his transactions with Solis, those recordings required no court order. However, our decision in Coleman and our recent decision on the same issue, State v. Canon (Mont.1984), 687 P.2d 705, 41 St.Rep. 1659, rely on the nature of a telephone conversation as opposed to a face-to-face conversation. An individual using a telephone has no way of knowing whether that conversation is being overheard by other parties. Thus, there exists no reasonable expectation of privacy. Coleman, supra.

We are aware of the plurality opinion in United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453. With reference to the issue now before this Court, the Supreme Court of the United States said:

"No different result should obtain where ... the informer disappears and is unavailable at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and profferring the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer's disappearance, but they do not appear critical to deciding whether prior events invaded the defendant's Fourth Amendment rights." White, 401 U.S. at 753-754, 91 S.Ct. at 1126-27.

Furthermore, the plurality opinion in White was approved in United States v. Caceres (1979), 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733, wherein the Supreme Court said:

"Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants." Caceres, 440 U.S. at 744, 99 S.Ct. at 1467.

This Court is not bound by decisions of the United States Supreme Court where independent grounds exist for reaching a contrary result. State v. Van Haele (Mont.1982), 649 P.2d 1311, 39 St.Rep. 1586. State v. Hyem (Mont.1981), 630 P.2d 202, 38 St.Rep. 891. In Hyem, the Court divided over the question of whether the delegates to the Montana State Constitutional Convention intended to extend the right of privacy to individual action. However, all members of the Court agreed that independent state grounds existed for this Court to extend greater privacy rights, and thereby greater protection against unreasonable search and seizure, than would be afforded under the Federal Constitution.

Much has been written about whether a state court should grant greater rights than the United States Supreme Court where the State Constitutional language is identical to that in the Federal Constitution. In State v. Jackson (Mont.1983), 672 P.2d 255, 40 St.Rep. 1698, a divided court held that the Montana Constitutional guarantee against self-incrimination does not afford greater protection than that afforded under the Federal Constitution. However, in that instance the language in the Montana Constitution does not afford a basis for distinguishing self-incrimination rights from those articulated in the Federal Constitution. This Court has afforded greater rights in search and seizure cases because the Montana Constitution specifically recognizes the importance of the right of privacy.

In Van Haele, 649 P.2d at 1313, Chief Justice Haswell writing for the majority said:

"We decline to overrule our previous citizen search cases and reaffirm our position taken therein. We base our reasoning on the firm stance taken by the Montana Constitution guaranteeing an individual's right of privacy."

The debate among delegates considering the privacy section to the Montana Constitution evidences clear opposition to electronic surveillance. The delegates considered whether to specifically ban eavesdropping in the Constitution itself. In debating this amendment, Delegate Campbell said:

"We at the committee felt very strongly that the people of Montana should be protected as much as possible against...