State v. Staker

• Decision Date: 22 June 2021
• Docket Number: DA 19-0731
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. Travis STAKER, Defendant and Appellant.

489 P.3d 489

2021 MT 151

STATE of Montana, Plaintiff and Appellee,

v.Travis STAKER, Defendant and Appellant.

DA 19-0731

Supreme Court of Montana.

Argued: March 26, 2021

Submitted: March 30, 2021

Decided: June 22, 2021

For Appellant: Mark J. Luebeck (argued), Angel, Coil & Bartlett, Bozeman, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar (argued), Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County, Attorney, Bozeman, Montana

For Amicus Montana Association of Criminal Defense Lawyers: Colin M. Stephens (argued), Smith & Stephens, P.C., Missoula, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Travis Michael Staker (Staker) appeals the September 2019 judgment of the Montana Eighteenth Judicial Court, Gallatin County, denying his motions to suppress his unwitting text message conversation with an undercover federal agent and accordingly dismiss the resulting charge of patronizing prostitution, a misdemeanor in violation of § 45-5-601(2)(b), MCA. We address the following restated issue:

Whether the District Court erroneously concluded that Staker had no reasonable expectation of privacy in text messages sent unknowingly to an undercover federal agent posing as a sex worker under an internet advertisement?

We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 During the week of August 26, 2018, officers of the Gallatin County Sheriff's Office, Bozeman Police Department, and the United States Department of Homeland Security conducted a warrantless internet sting operation targeting individuals who responded affirmatively to a thinly-veiled advertisement placed on various internet websites for sex-for-hire. The ad purported to be from a female identified only as "Lily" and directed those interested to respond either by email to a specified address, or by text message to a specified cell phone number. The ad did not disclose that the phone number was actually the number to a cell phone owned by law enforcement and that a law enforcement officer would thus be responding as "Lily."

¶3 Staker responded to the ad by text message from his cell phone and thereafter engaged in an ongoing text message conversation with "Lily," the purported offeror of the advertised services. Upon settling by text on the scope of services, price, date, and time,¹ "Lily" directed Staker to the Bozeman Hilton Garden Inn to meet-up for the negotiated sexual transaction at 7:00 p.m. that night.²

¶4 Upon Staker's entry into the back entrance of the Hilton Garden Inn as directed, lying in wait were a Bozeman police detective and the involved federal agent who promptly arrested him. A warrantless search of Staker's person incident to arrest yielded his cell phone and sufficient cash to pay for the price negotiated with "Lily." After seizing his cash and cell phone, officers took him to the Gallatin County Detention Center for booking. In May 2019, the State formally charged Staker in the Gallatin County Justice Court with patronizing prostitution, a misdemeanor.

¶5 Based on a stipulated set of facts, Staker later filed a motion for suppression of his text message conversation with "Lily,"³ and for dismissal of the case due to the resulting lack of evidence. He essentially asserted that the warrantless use of an undercover officer to induce his response to the false internet ad and ensuing text message conversation with "Lily" violated his right to privacy under Article II, Sections 10 - 11 of the Montana Constitution. The Justice Court agreed and granted the motion to suppress evidence, but denied the motion to dismiss. The State appealed the suppression ruling to district court pursuant to §§ 46-17-311(2) and 46-20-103(2)(c), MCA.

¶6 On de novo appeal to district court,⁴ Staker again moved for pretrial suppression and dismissal on the asserted ground that the warrantless use of an undercover officer to induce his response to the false internet ad and ensuing text message conversation with "Lily" violated his right to privacy under Article II, Sections 10 - 11.⁵ However, the District Court denied the motions, concluding that Staker's asserted subjective expectation, that the text messages he sent to "Lily" were and would remain private, was not objectively reasonable under the circumstances. Staker subsequently entered a conditional guilty plea reserving the right to appeal the denials of his motions to suppress and dismiss. After sentencing, he timely appealed.

STANDARD OF REVIEW

¶7 We review the denial of motions to suppress evidence and for dismissal of a criminal charge to determine whether any requisite findings of fact are clearly erroneous, and de novo as to whether the lower court correctly interpreted and applied the governing law. State v. Conley , 2018 MT 83, ¶ 9, 391 Mont. 164, 415 P.3d 473 ; State v. Allen , 2010 MT 214, ¶ 21, 357 Mont. 495, 241 P.3d 1045 ; State v. Goetz , 2008 MT 296, ¶ 9, 345 Mont. 421, 191 P.3d 489. Here, the stipulated facts are not in dispute—the narrow issue is whether the District Court correctly interpreted and applied the governing law.

DISCUSSION

¶8 Individuals have a fundamental Montana constitutional right to privacy, subject to government infringement only upon "showing of a compelling state interest." Mont. Const. art. II, § 10. In general, privacy is the "ability to control access to information about oneself." State v. Hyem , 193 Mont. 51, 62, 630 P.2d 202, 209 (1981) (citing Charles Fried, Privacy , 77 Yale L.J. 475, 482-83 (1968) ), overruled on other grounds by State v. Long , 216 Mont. 65, 68-69, 700 P.2d 153, 156 (1985). Individuals also have a separate but corresponding Montana constitutional right to be free from "unreasonable searches and seizures." Mont. Const. art. II, § 11. As implementation of its substantive reasonableness requirement, Article II, Section 11 includes a procedural warrant requirement specifying that "[n]o warrant to search any place, or seize any person or thing shall issue without ... probable cause[ ] supported by [written] oath or affirmation." Mont. Const. art. II, § 11.

¶9 The fundamental purpose of Article II, Sections 10 - 11 is "to protect the privacy and security of individuals from unreasonable government intrusion or interference." State v. Hoover , 2017 MT 236, ¶ 14, 388 Mont. 533, 402 P.3d 1224 (internal citation and punctuation omitted).⁶ 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. Goetz , ¶¶ 13-14 (citing State v. Hardaway , 2001 MT 252, ¶¶ 32 and 35, 307 Mont. 139, 36 P.3d 900 ; State v. Solis , 214 Mont. 310, 316, 693 P.2d 518, 521 (1984) ) (finding greater Montana right to privacy based on express recognition of a specific right to privacy in Article II, Section 10 ). "When analyzing search and seizure questions that specifically implicate the right of privacy," we thus analyze and apply Article II, Sections 10 - 11 in tandem. Hardaway , ¶ 32. See also State v. Smith , 2004 MT 234, ¶¶ 9-13, 322 Mont. 466, 97 P.3d 567 ( Article II, § 10 right to individual privacy augments § 11 right to be free from unreasonable searches and seizures); Solis , 214 Mont. at 319, 693 P.2d at 522 ("[t]he right to privacy is the cornerstone of" the "protection[ ] against unreasonable searches and seizures").

A. Extent of Montana Right to Privacy and Trigger of Protection Against Unreasonable Search and Seizure in Particular Cases .

¶10 Under Article II, Section 10, a right to privacy exists only to the extent that an individual has or had a reasonable expectation of privacy under the totality of the circumstances at issue. Raap v. Bd. of Trustees, Wolf Point Sch. Dist. , 2018 MT 58, ¶ 11, 391 Mont. 12, 414 P.3d 788 ; Solis , 214 Mont. at 314, 693 P.2d at 520 ; Missoulian, Inc. v. Bd. of Regents , 207 Mont. 513, 522, 675 P.2d 962, 967 (1984) ; Montana Hum. Rts. Div. v. City of Billings , 199 Mont. 434, 442, 649 P.2d 1283, 1287 (1982) (adopting threshold Fourth Amendment "search" criteria from Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 507, 542, 19 L.Ed.2d 576 (1967)⁷ as the threshold privacy test under Article II, Section 10 ). The Article II, Section 11 right to be free from unreasonable searches and seizures similarly applies only to constitutional "searches" or "seizures." State v. Boyer , 2002 MT 33, ¶¶ 18 and 20, 308 Mont. 276, 42 P.3d 771 ; State v. Bullock , 272 Mont. 361, 377, 901 P.2d 61, 71 (1995). A constitutional "search" occurs where government action intrudes or infringes upon an individual's reasonable expectation of privacy. State v. Stewart , 2012 MT 317 ¶¶ 33-34, 367 Mont. 503, 291 P.3d 1187 ; Allen , ¶¶ 47-61 ; Goetz , ¶¶ 25 and 27-37 ; State v. Tackitt , 2003 MT 81, ¶ 17, 315 Mont. 59, 67 P.3d 295 ; Boyer , ¶ 20 ; Hardaway , ¶ 16 ; State v. Scheetz , 286 Mont. 41, 46, 950 P.2d 722, 726 (1997) ; State v. Loh , 275 Mont. 460, 468, 914 P.2d 592, 597 (1996) (quoting Horton v. California , 496 U.S. 128, 133-34, 110 S. Ct. 2301, 2306, 110 L.Ed.2d 112 (1990) );⁸ Bullock , 272 Mont. at 377, 901 P.2d at 71 ; State v. Bennett , 205 Mont. 117, 121, 666 P.2d 747, 749 (1983) (applying threshold Fourth Amendment "search" test from Katz as threshold "search" test under Article II, Section 11 ), overruled on other grounds by Bullock , 272 Mont. at 384, 901 P.2d at 76 ; State v. Charvat , 175 Mont. 267, 269-72, 573 P.2d 660, 661-63 (1978) (applying Katz test as threshold "search" test under Article II, Section 11 ), overruled on other grounds by Bullock , 272 Mont. at 384, 901 P.2d at 75-76.⁹

¶11 For purposes of Article II, Sections 10 - 11, a reasonable expectation of privacy exists only to the extent that an individual has a subjective expectation of privacy that is objectively reasonable in society. Stewart , ¶¶ 33-34 ; Allen , ¶¶ 47-61 ; Goetz , ¶¶ 27-37 ; Boyer , ¶ 20 ; Scheetz , 286...