STATE v COBURN

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No. 12707 I N THE S P E E COURT O THE STATE O MONTANA URM F F THE STATE O MONTANA, F P l a i n t i f f and Appellant, DONALD LEROY COBURN, Defendant and Respondent. D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , Honorable P e t e r G. Meloy, Judge presiding. Appeal from: Counsel of Record: For Appellant : Hon. Robert L. Woodahl, Attorney General, Helena, Montana J . C. Weingartner, A s s i s t a n t Attorney General, argued, Helena, Montana Leif B. Erickson argued, Deputy County Attorney, Helena, Montana For Respondent : Smith, Smith and Sewell, Helena, Montana Robert J. Sewell argued, Helena, Montana For Amicus Curiae: Rae Kalbfleisch, Shelby, Montana Thomas Honzel, Helena, Montana Submitted: June 12, 1974 Decided : -. : 3 9 ,g73 " . . r- F Filed: ? : 3 -- - a IS M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t . The s t a t e a p p e a l s from a n o r d e r of t h e d i s t r i c t c o u r t , Lewis and C l a r k County, on J a n u a r y 23, 1974, t o s u p p r e s s e v i dence, i.e. marijuana. The e v i d e n c e was s e i z e d by R o b e r t H i l l i s , manager of McDonald's R e s t a u r a n t , from a c o a t b e l o n g i n g t o def e n d a n t hanging i n t h e m a n a g e r ' s o f f i c e o f t h e r e s t a u r a n t l o c a t e d i n Helena, Montana. The Montana County A t t o r n e y s A s s o c i a t i o n f i l e d a motion w i t h t h i s C o u r t f o r l e a v e t o a p p e a r , f i l e a b r i e f , and make o r a l argument amicus c u r i a e . I t s motion w a s g r a n t e d . Defendant Donald Leroy Coburn was employed a s a n a s s i s t a n t manager a t McDonald's R e s t a u r a n t l o c a t e d i n Helena. s u p e r v i s o r w a s t h e manager, Robert tween 4 : 0 0 and 6:00 p.m., illi is. on November 2 9 , His While a t home be1973, H i l l i s r e c e i v e d a phone c a l l from J a s o n K e l l e r , a n o t h e r a s s i s t a n t manager of McDonald's, a l e r t i n g him t h a t d e f e n d a n t had some m a r i j u a n a on t h e r e s t a u r a n t ' s premises. H i l l i s t h e n c a l l e d t h e owner of t h e s t o r e i n B i l l i n g s t o i n f o r m him of t h e problem and a s k h i s a d v i c e . Following h i s c o n v e r s a t i o n w i t h t h e owner, H i l l i s went d i r e c t l y t o t h e Helena p o l i c e d e p a r t m e n t and spoke w i t h one S g t . Sanguine. The t r a n s c r i p t shows t h i s e x a m i n a t i o n o f H i l l i s : "Q. A s c l o s e l y a s p o s s i b l e , would you t e l l t h e Okay, I C o u r t what y a a i d t o t h e o f f i c e r ? A. went down and I t o l d him who I w a s and I t o l d him t h a t t h e r e was m a r i j u a n a i n t h e s t o r e and t h a t I d i d n ' t want t o g e t t h e s t o r e i n v o l v e d , you know, any more t h a n n e c e s s a r y , and we t a l k e d a b o u t whether i t w a s l e g a l f o r him t o go g e t i t , and he s a i d t h a t he c o u l d n ' t f o r some l e g a l r e a s o n and w e t a l k e d a b a u t whether I s h o u l d , and h e d i d n ' t know whether t h a t was l e g a l o r n o t f o r s u r e and h e c a l l e d somebody and t a l k e d t o them, I d o n ' t remember who it was and I d o n ' t remember whether w e e v e r came t o a d e f i n i t e d e c i s i o n a s t o whether I s h o u l d qet it o r f o r q e t it o r what, and I w a s n ' t g o i n g t o l e a v e it i n t h e s t o r e , I c o u l d n ' t have i t i n t h e s t o r e b e c a u s e i f t h e o t h e r k i d s , i f any of them knew a b o u t i t , b e c a u s e i f one can do it t h e y might a l l d o i t . " On c r o s s - e x a m i n a t i o n , H i l l i s t e s t i f i e d : "Q. I am trying to get what your frame of mind police department. A. it out of there one way police wouldn't I would some idea, you know, of was when you left the Well, I would have gotten or the other, if the have gotten it out myself. "Q. Now, you have testified that you had some conversation with the officer about whether or not you should remove this package? A. Right. "Q. And you also testified that you don't remember what conclusion was reached? A. No. "Q. Well, could you say whether or not you had the feeling when you left the police department that you should do it? A. I had the feeling I was going to, I knew I was going to." On redirect: "Q. On this last topic you stated that at the police station or thereafter you went back with the idea of removing the marijuana. Had you formed that idea prior to going to the police station, the general concept that the marijuana should be removed from the premises? A. Yes, before I even went to the police station, definitely. "Q. So, it wasn't as a result of your conversation at the police station that you decided to remove the marijuana? A. No, absolutely not." On recross: "Q. And if the police had taken steps or had told you they would take steps, then I presume you wouldn't have taken any action to remove it? A. Right. I' On cross-examination Sgt. Sanguine testified: - "0. Did he ask for any advice as to what to do? A. Well, he didn't want to, he didn't want the police to enter the premises because of the possibility of bad publicity for the company, but he just wanted us to know he was going to go down there. "0O k a v . and what did vou do, what did YOU respond t b that? A. weil, I advised him that under the circumstances that if he didn't want us to enter into it, he would be mainly on his own as to how he wanted to handle it. "Q. Could you tell us, well, is there anything do you remember any parting words when he left the police station? A. When he left, he was still undecided a b o u t how he was g o i n g t o h a n d l e i t and I d i d a d v i s e him i f he wanted u s t o t h a t w e c o u l d w a i t u n t i l M r . Coburn g o t o f f d u t y and we would c o n f r o n t him down o f f t h e p r e m i s e s . Did you f e e l you had, based on your i e n c e as a p o l i c e s e r g e a n t , d i d you f e e l you had s u f f i c i e n t c a u s e a t t h a t t i m e t o I feel that t o s e i z e t h e s u b s t a n c e ? A. c o u l d a l l o w u s t o e n t e r t h e p r e m i s e s , we have. I' "Q. - experthat attempt i f hecould On r e c r o s s : "Q. I t a k e it t h a t when he came i n and t o l d you t h e s e problems and t h e f a c t t h a t he d i d n ' t want h i s company i n v o l v e d , t h a t t h e r e ensued a d i s c u s s i o n a b o u t a s e i z u r e of t h e s e packages by h i m s e l f , and r a t h e r t h a n a s e i z u r e o f t h e packages by you, i s t h a t t r u e ? A. Well, I d i d n ' t a d v i s e him t o d o i t t h a t way. "Q. T h a t ' s r i g h t , I u n d e r s t a n d t h a t , b u t what I want t o know i s what w a s s a i d a b o u t him d o i n g it. A. Well, I d o n ' t b e l i e v e a t t h e t i m e he r e a l l y d i d n ' t know what h e w a s g o i n g t o d o , I c a n ' t s a y t h e r e was t o o much d i s c u s s i o n on him removing i t . "Q. Did you e x p e c t him when he came back w i t h t h e No, I d i d n ' t r e a l l y , I d i d n ' t t h i n k he s t u f f ? A. would come back!' (Emphasis s u p p l i e d ) . F o l l o w i n g h i s c o n v e r s a t i o n w i t h S g t . Sanguine, H i l l i s l e f t t h e p o l i c e s t a t i o n and went t o t h e r e s t a u r a n t ; upon a r r i v i n g there, h e e n t e r e d t h e m a n a g e r ' s o f f i c e . T h i s o f f i c e was a p r i v a t e o f f i c e t o which o n l y t h e manager and a s s i s t a n t managers had unlimited access. wall. H i l l i s t h e n s a w d e f e n d a n t ' s c o a t hanging on t h e He c o u l d see a b u l g e i n t h e h i p p o c k e t . H e removed t h e s u b s t a n c e , l a t e r d e t e r m i n e d t o be m a r i j u a n a , from d e f e n d a n t ' s c o a t w i t h o u t a s e a r c h w a r r a n t o r w i t h o u t e x p r e s s o r i m p l i e d cons e n t from d e f e n d a n t . H i l l i s then returned t o t h e p o l i c e s t a t i o n and t u r n e d t h e m a r i j u a n a o v e r t o t h e p o l i c e . I n i t s order suppressing t h i s evidence t h e d i s t r i c t c o u r t said i n part: "It i s t h e opinion of t h i s Court t h a t t h e r u l e a d o p t e d by t h e Montana Supreme C o u r t i n the Brecht case a p p l i e s i n t h e case a t b a r , t h e r e f o r e , it is "ORDERED t h a t t h e motion t o s u p p r e s s t h e e v i d e n c e o b t a i n e d by t h e s e a r c h be and t h e s a m e i s h e r e b y granted." (Emphasis a d d e d ) . There i s b u t one i s s u e p r e s e n t e d by t h e s t a t e i n t h i s appeal: Did t h e d i s t r i c t c o u r t err i n s u p p r e s s i n g t h e e v i d e n c e s e i z e d by Robert H i l l i s , r e l y i n g on t h i s C o u r t ' s d e c i s i o n i n S t a t e v . B r e c h t , 157 Mont. 264, 270, 485 P.2d 47 ( 1 9 7 1 ) ? T h i s c a s e i s unique i n t h a t t h e s t a t e and amicus c u r i a e a t t a c k only t h e Brecht d e c i s i o n . They a s k t h a t i t be r e v e r s e d and c o n f i n e t h e i r arguments i n t h a t r e g a r d o n l y t o t h e a p p l i c a t i o n of t h e F o u r t h Amendment t o t h e United S t a t e s C o n s t i t u t i o n , i g n o r i n g any o t h e r c o n s i d e r a t i o n s . T h i s would i n d i c a t e t h a t B r e c h t , a s w r i t t e n , i s n o t c l e a r and a n e x p l a n a t i o n i s w a r r a n t e d e v e n though t h e i n s t a n t c a s e can be d i s t i n g u i s h e d . I n B r e c h t t h e d e f e n d a n t was c h a r g e d w i t h t h e murder of h i s estranged wife. H e r d e a t h r e s u l t e d from t h e d i s c h a r g e o f a s h o t g u n under d i s p u t e d c i r c u m s t a n c e s i n t h e t a v e r n where s h e was employed on t h e e v e n i n g of May 1 7 , 1967. Deceased and h e r s i s t e r Sandra r e s i d e d w i t h t h e i r mother a t t h e m o t h e r ' s home f o r a p e r i o d of t i m e b e f o r e t h e s h o o t i n g . The s i s t e r Sandra r e c e i v e d a c a l l a t t h e m o t h e r ' s home from t h e d e f e n d a n t on t h e e v e n i n g o f A p r i l 29, 1967, some two weeks p r i o r t o t h e s h o o t i n g i n c i d e n t ; he asked t o speak w i t h h i s w i f e and Sandra c a l l e d h e r t o t h e t e l e p h o n e . Without t h e c o n s e n t of e i t h e r p a r t y , Sandra proceeded t o l i s t e n t o t h e c o n v e r s a t i o n on an e x t e n s i o n t e l e p h o n e i n a n o t h e r room. At t r i a l Sandra was p e r m i t t e d t o r e l a t e t h e c o n v e r s a t i o n which s h e y a l l e g e d c o n t a i n e d t h i s t h r e a t by d e f e n d a n t " I g o t m s h o t g u n o u t o f hock, I a m coming down and I w i l l u s e i t i f I have t o " . I n B r e c h t t h e s t a t e a g r e e d t h a t had t h i s i n t r u s i o n and t h e c o n v e r s a t i o n o v e r h e a r d been o b t a i n e d by a n a g e n t of t h e s t a t e it would have been e x c l u d e d by t h e c o u r t b e c a u s e of t h e r u l i n g i n Katz v. United S t a t e s , 389 U.S. (1967). 347, 88 S.Ct. 507, 1 9 L e d 2d 576 K a t z i s a e l e c t r o n i c s u r v e i l l a n c e c a s e and t h e landmark c a s e t h a t o v e r t u r n e d t h e l o n g s t a n d i n g d o c t r i n e t h a t s e a r c h and seizure under the Fourth Amendment was unreasonable only if an intrusion or trespass accompanied the seizure of "tangible goods" i.e., indicating a property right or enclave theory. Katz held these rights to be personal and protective of people and not simply areas with no physical intrusion required. Brecht excluded the conversation of Sandra Br~mfieldbased on violation of defendant's right of privacy established in Welsh v. Roehrn, 125 Mont. 517, 241 P.2d 816, a court declared constitutional right; the Fourth and Fifth Amendments of the United States Constitution; Art. 111, Sec. 7 of the 1889 Montana Constitution; and stated in pertinent part: " * * * The violation of the constitutional right to privacy and against compulsory self-incrimination is as detrimental to the person to whom the protection is guaranteed in the one case as in the other. To distinguish between classes of violators is tantamount to destruction of the right itself. * * * "This Court in the present case would be remiss were it not to recognize that evidence obtained by the unlawful or unreasonable invasion of several of the constitutionally protected rights guaranteed to its citizens by both the federal and Montana. constitutions properly comes within the contemplation of this Court's exclusionary rule. To do otherwise would lend Court approval to a fictional distinction between classes of citizens: those who are bound to respect the Constitution and those who are not. Were the exclusionary rule to recognize such distinctions it would by indirection circumvent the rule established by this Court to enforce these rights and would in fact render the rule and the constitutional guarantees it protects meaningless." The state and amicus curiae proceed in argument on the premise that Brecht rested solely on the Fourth Amendment and present a deluge of Fourth Amendment cases which establish this general rule, contained in 68 Am Jur 2d, Searches and Seizures S13, p. 670: "It is no part of the policy underlying the Fourth Amendment to discourage citizens from a i d i n g t o t h e u t m o s t of t h e i r a b i l i t y i n t h e a p p r e h e n s i o n of c r i m i n a l s . A c c o r d i n g l y , i t h a s l o n g been r e c o g n i z e d t h a t t h e F o u r t h Amendment's p r o t e c t i o n s a g a i n s t u n r e a s o n a b l e s e a r c h and s e i z u r e do n o t e x t e n d t o a s e a r c h o r s e i z u r e made by a p r i v a t e i n d i v i d u a l , conducted without p o l i c e p a r t i c i p a t i o n . I n support of t h i s r u l e , it h a s been s a i d t h a t t h e o r i g i n and h i s t o r y of t h e F o u r t h Amendment c l e a r l y show t h a t i t w a s i n t e n d e d o n l y a s a r e s t r a i n t upon t h e a c t i v i t i e s of s o v e r e i g n a u t h o r i t y , and t h a t a c o n t r a r y r u l i n g would have no d e t e r r e n t e f f e c t s i n c e p r i v a t e p e r s o n s would be unaware of t h e r u l e * * *It. (Emphasis a d d e d ) . The g e n e r a l r u l e and c i t e d c a s e s a r e based on t h e h o l d i n g o f t h e United S t a t e s Supreme C o u r t i n Burdeau v . McDowell, 256 U.S. The s t a t e and amicus a r g u e t h a t B r e c h t was i m p r o v i d e n t and a g a i n s t t h e w e i g h t o f a u t h o r i t y . A c a r e f u l r e a d i n g of B r e c h t r e v e a l s t h a t t h i s i s a n o v e r s i m p l i f i c a t i o n of t h e problem. As h e r e t o f o r e s t a t e d B r e c h t r e s t e d o n l y i n p a r t on t h e F o u r t h Amendment and it would a p p e a r t h a t any a t t e m p t t o r e v e r s e B r e c h t would n e c e s s a r i l y r e q u i r e a t r e a t m e n t o f a d d i t i o n a l c o n s t i t u t i o n a l c o n s i d e r a t i o n s upon which t h e B r e c h t d e c i s i o n rests a n d , f u r t h e r , a c o n s i d e r a t i o n of t h e l e g a l i s s u e s r a i s e d by d e f e n d a n t h e r e . f e n d a n t c o n t e n d s t h e s e a r c h v i o l a t e d t h e s e c o n s t i t u t i o n a l and s t a t u t o r y provisions: A r t i c l e 11, Sec. 1 0 , 1972 Montana C o n s t i t u t i o n : " R i g h t of P r i v a c y . The r i g h t of i n d i v i d u a l p r i v a c y i s e s s e n t i a l t o t h e w e l l - b e i n g of a f r e e s o c i e t y and s h a l l n o t be i n f r i n g e d w i t h o u t t h e showing of a c o m p e l l i n g s t a t e i n t e r e s t . " S e c t i o n 95-701, R.C.M. 1947: " S e a r c h e s and seizures--when a u t h o r i z e d . A s e a r c h of a p e r s o n , o b j e c t o r p l a c e may be made and i n s t r u m e n t s , a r t i c l e s o r t h i n g s may be s e i z e d i n a c c o r d a n c e w i t h t h e p r o v i s i o n s of t h i s c h a p t e r when t h e s e a r c h i s made: " ( a ) A s an incident t o a lawful a r r e s t . "Cb) With t h e c o n s e n t of t h e a c c u s e d o r of any o t h e r p e r s o n who i s l a w f u l l y i n p o s s e s s i o n of t h e o b j e c t o r p l a c e t o be s e a r c h e d , o r who i s b e l i e v e d upon r e a s o n a b l e c a u s e t o be i n s u c h l a w f u l p o s s e s s i o n by t h e p e r s o n making t h e s e a r c h . De- " ( c ) By t h e a u t h o r i t y of a v a l i d s e a r c h w a r r a n t . " ( d ) Under t h e a u t h o r i t y and w i t h i n t h e s c o p e of a r i g h t of l a w f u l i n s p e c t i o n g r a n t e d by law." D e f e n d a n t ' s c o n t e n t i o n s r a i s e some i n t e r e s t i n g problems when c o n s i d e r e d w i t h t h e f a c t t h a t Montana h a s a s t a t u t e , s e c t i o n 95-611, R.C.M. 1947, which p r o v i d e s : "95-611. A r r e s t by a p r i v a t e p e r s o n . p e r s o n may a r r e s t a n o t h e r when: A private "(1)he b e l i e v e s , on r e a s o n a b l e g r o u n d s , t h a t an o f f e n s e i s b e i n g committed o r a t t e m p t e d i n h i s presence ; " ( 2 ) a f e l o n y h a s i n f a c t been committed and he b e l i e v e s , on r e a s o n a b l e g r o u n d s , t h a t t h e p e r s o n a r r e s t e d h a s committed i t * * * " . A l s o , t h e f e d e r a l c o n s t i t u t i o n c o n t a i n s no s p e c i f i c s e c t i o n e s t a b l i s h i n g a s e p a r a t e and i n d e p e n d e n t r i g h t o f p r i v a c y a s d o e s t h e 1972 Montana C o n s t i t u t i o n . The U n i t e d S t a t e s C o n s t i - t u t i o n r e c o g n i z e s t h e r i g h t a s p a r t of t h e F i r s t , T h i r d , F o u r t h and F i f t h Amendments. Katz v . United S t a t e s , s u p r a . The s t a t e i n o r a l argument c i t e d a Montana Law Review n o t e a t 3 4 Montana Law Review 187, which i t a d v i s e d t h e C o u r t a l s o r e p r e s e n t e d t h e s t a t e ' s view a s a n i n d e p t h d i s c u s s i o n of B r e c h t and t h e e x c l u s i o n a r y r u l e . The t o t a l i t y of t h e s t a t e , amicus and law r e v i e w a r t i c l e arguments r e d u c e t h e m s e l v e s t o : (1) The e x c l u s i o n a r y r u l e i s n o t a c o m p l e t e l y s a t i s f a c - t o r y r u l e and r e p r e s e n t s a n a t t e m p t t o s o l v e a problem t h a t d e f i e s simple s o l u t i o n . The c o n f l i c t i n g p o l i c y c o n s i d e r a t i o n s a r e t h e i n t e r e s t of s o c i e t y i n c r i m i n a l p r o s e c u t i o n s and t h e p r o h i b i t i n g of law enforcement p e r s o n n e l from v i o l a t i n g F o u r t h Amendment p r o s c r i p t i o n s , a p r o s c r i p t i o n e x t e n d e d t o r i g h t of privacy as w e l l . The i n t e n t of t h e r u l e w a s t o remove t h e in- c e n t i v e f o r o f f i c e r s t o v i o l a t e t h e r u l e and d e t e r o f f i c i a l misconduct and promote " j u d i c i a l i n t e g r i t y " . Loqic would d i c t a t e t h a t t o f u l f i l l t h e f u n c t i o n of t h e r u l e t h e p e r s o n v i o l a t i n g t h e r u l e must have a n i n t e r e s t i n o b t a i n i n g t h e c o n v i c t i o n and must a t l e a s t be aware o f t h e r u l e . ( 2 ) They a d o p t t h e s t r i c t c o n s t r u c t i o n d o c t r i n e of t h e g e n e r a l r u l e t h a t t h e a u t h o r s of t h e F o u r t h Amendment, f e a r i n g a n o p p r e s s i v e s o v e r e i g n , meant o n l y t o g i v e l i m i t e d p r o t e c t i o n from government a c t i o n . The United S t a t e s Supreme C o u r t i n Burdeau v . McDowell, 256 U.S. 465, 475, 4 1 S . C t . 574, 65 L ed 1048, s a i d : "The F o u r t h Amendment g i v e s p r o t e c t i o n a g a i n s t u n l a w f u l s e a r c h e s and s e i z u r e s , and a s shown i n t h e previous cases, i t s protection a p p l i e s t o governmental a c t i o n . I t s o r i g i n and h i s t o r y c l e a r l y show t h a t i t was i n t e n d e d a s a r e s t r a i n t upon t h e a c t i v i t i e s of s o v e r e i g n a u t h o r i t y , and was n o t i n t e n d e d t o be a l i m i t a t i o n upon o t h e r t h a n qovernmental a g e n c i e s ; a s a g a i n s t such a u t h o r i t y it was t h e DurDose of t h e F o u r t h AmendmenL t o s e c u r e t h e c i t l z e n i n t h e r i q h t of unm o l e s t e d o c c u p a t i o n of h i s d w e l l i n q and t h e poss e s s i o n of h i s p r o p e r t y s u b j e c t t o t h e r i q h t of s e i z u r e by p r o c e s s d u l y i s s u e d . " (Emphasis added) A f a i r a n a l y s i s of t h e arguments would seem t o imply t h a t t h e p o s i t i o n of t h e p a r t i e s was much t h e same a s t h a t exp r e s s e d by Chief J u s t i c e T a f t , w r i t i n g f o r t h e m a j o r i t y i n a f i v e f o u r d e c i s i o n , Olmstead v . United S t a t e s , 277 U . S . 564, 7 2 L e d 944, 954, 438, 48 S.Ct. ( 1 9 2 8 ) , a t e l e p h o n e i n t r u s i o n c a s e by f e d e r a l o f f i c e r s , where he h e l d t h e F o u r t h Amendment n o t s u b j e c t t o a p p l i c a t i o n beyond t h e i n t e n t of t h e f r a m e r s of t h e amendment and i t s words c o u l d n o t be s t r e t c h e d t o be g i v e n a meaning t o i n c l u d e " i n t a n g i b l e " and t r e s p a s s was a r e q u i r e m e n t t o i n v a d e t h e protected property. A l l p a r t i e s i n t h e i n s t a n t c a s e have avoided any a n a l y s i s of Katz i n which, J u s t i c e Black i n h i s d i s s e n t i n g o p i n i o n p r o - - c l a i m s t h a t t h e m a j o r i t y i n Katz have " r e w r i t t e n t h e F o u r t h Amendmerit". J u s t i c e Black i n h i s d i s s e n t a l s o r e l i e d h e a v i l y on Olmstead . I t would a p p e a r t h e n t h a t t h e arguments based on s t r i c t i n t e r p r e t a t i o n , o r i g i n , h i s t o r y , and i n t e n t of t h e a u t h o r s a s t h e y c o n c e r n t h e F o u r t h Amendment a r e h i g h l y d i l u t e d s i n c e Katz i n 1967. The m a j o r i t y i n Katz r e c o g n i z e t h a t t h e f o r m e r d e c i s i o n s of t h e Court f o r e c l o s e d F o u r t h Amendment i n q u i r y when p e n e t r a t i o n o r t r e s p a s s was a b s e n t , c i t i n g Olmstead and Goldman v . U n i t e d S t a t e s , 316 U.S. 1 2 9 , 62 S.Ct. 993, 86 L ed 1322, f o r t h e Amend- ment was t h o u g h t t o l i m i t o n l y s e a r c h e s and s e i z u r e s of t a n g i b l e p r o p e r t y and p r o p e r t y r i g h t s c o n t r o l l e d . c i t e d Silverman v . United S t a t e s , 365 U.S. The m a j o r i t y , i n K a t z , 505, 81 S . C t . 679, 5 L ed 2d 734, a s t h e d e p a r t u r e from t h a t narrow view and i n c l u d e d intangibles a s well. I t went on t o h o l d t h a t t h e F o u r t h Amend- ment p r o t e c t s p e o p l e and n o t simply " a r e a s " and t h e r e f o r e t h e r e a c h o f t h e F o u r t h Amendment c a n n o t t u r n upon t h e p r e s e n c e o r a b s e n c e o f p h y s i c a l i n t r u s i o n i n t o any g i v e n e n c l o s u r e , and t h e t r e s p a s s d o c t r i n e i n Olmstead and Goldman c a n no l o n g e r be controlling. T h i s t h e n d e m o n s t r a t e s a r a d i c a l d e p a r t u r e from t h e a c c e p t e d meaning of t h e words of t h e F o u r t h Amendment which cont r o l l e d f o r o v e r a p e r i o d of 40 o r more y e a r s , s i n c c Olmstead. It f u r t h e r demonstrates t h a t t h e s e t r a d i t i o n a l concepts a r e n o t static. T h i s i s n o t a new c o n c e p t by any means. I n Olmstead, many y e a r s a g o , among t h e f o u r d i s s e n t i n g j u s t i c e s , B r a n d i e s o b s e r v e d i n r e f e r e n c e t o i n t e r p r e t a t i o n on t h e same s u b j e c t a s Katz: "Clauses guaranteeing t o t h e i n d i v i d u a l p r o t e c t i o n a g a i n s t s p e c i f i c a b u s e s of power, must have a s i m i l a r c a p a c i t y of a d a p t a t i o n t o a changing world. I t was w i t h r e f e r e n c e t o s u c h a c l a u s e t h a t t h i s c o u r t s a i d , i n Weems v. United S t a t e s , 217 U.S. 349, 373, 54 L ed 793, 801, 30 Sup.Ct. Rep. 544: ' L e g i s l a t i o n , b o t h s t a t u t o r y and cons t i t u t i o n a l , i s e n a c t e d , it i s t r u e , from an exp e r i e n c e of e v i l s , b u t i t s g e n e r a l l a n g u a g e s h o u l d n o t , t h e r e f o r e , be n e c e s s a r i l y c o n f i n e d t o t h e form t h a t e v i l had t h e r e t o f o r e t a k e n . T i m e works c h a n g e s , b r i n s s i n t o e x i s t e n c e new c o n d i t i o n s and p u r - o s e s . p heref fore a p r i n c i p l e t o be v i t a l must be c a p a b l e - of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into lifeless and impotent formulas. Rights declared in words might be lost in reality.'" (Emphasis added) . So far as privacy is concerned, Katz recognized the Fourth Amendment was not a general right of privacy but the right was contained in the Fourth and several other amendments, the First, Third and the Fifth, and as stated in Katz at p. 581, 19 L ed 2d, in reference to the right of privacy: " * * * his right to be let alone by other people-is, like the protection of his property and of his very life, left largely to the law of the individual States." In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L ed 746, (1886), the Court noted that the Fourth and Fifth Amendments were very closely tied and the unreasonable search and seizure of the Fourth Amendment almost always compels a man to give evidence against himself which is condemned in the Fifth Amendment. In this regard the Fourth and Fifth Amendments almost run into each other. This adds to the problem the fact that a violation of the Fifth Amendment rights, whether private or government, is condemned in all courts, military and civil. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L ed 2d 513, (1963); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L ed 2d 760, (1961); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L ed 2d 975, (1958). Concerning the exclusionary rule itself, it would be well to consider first that the "exclusionary rule" is a court adopted rule resting on the "rule making" and "supervisory power" of the Supreme Court over the other courts and has no roots in the constitution or the statutes of the state or federal government. (Dissent in Katz by Justice Black and citing Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L ed 1782; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L ed 2d 1081, 84 ALR2d 933; Elkins v. U.S., 364 U.S. 206, 80 S.Ct. 1437, 4 L ed 2d 1669, 1677, 1680, 1681, (1960). ) The fact that the rule is characterized as not satisfactory and the state in argument recommended that a tort remedy for the aggrieved was adequate, simply ignores that all of the cases which declare the rule as a deterrent because the wrong cannot be corrected or compensated, but merely avoided in the future, must have recognized that there could be no price placed on a constitutional right. The court in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, (1955), observed that the court was compelled to apply the rule because all remedies, such as criminal and tort, had completely failed to secure these rights under the Constitution. Cahan was cited and approved in Elkins with a long discussion on the problem, citing statements from the chief law enforcement officers of California and the FBI in support of the rule. In Elkins, the court said: "The exclusionary rule has for decades been the subject of ardent controversy. The arguments of its antagonists and of its proponents have been so many times marshalled as to require no lengthy elaboration here." It is, however, noteworthy to comment on its application and the "silver platter doctrine" that resulted. The first application of the rule, in 1914, applied only to the federal court system and only excluded tainted evidence obtained by federal officers and as a result the so-called "silver platter doctrine" was developed, i.e., state officers could violate a person's constitutional right and hand the evidence to the federal officers [on a silver platter] and such evidence could be used in the federal court because no federal officer was physically involved in the violation. This practice was recognized but ignored for over 40 years until Elkins. In that case, the "silver platter doctrine" was finally discredited. Elkins went on to observe that it is unlikely factual data could be assembled to demonstrate that the exclusionary rule was unworkable and in some depth demonstrated the opposite conclusion. Of more interest, Elkins cites with approval as a ground for rejecting the so-called "silver platter doctrine": "But there is another consideration--the imperative of judicial integrity. It was of this that Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United States, 277 U.S. 438, at 469, 471,72 L ed 944, 952, 953, 48 S.Ct. 564, 66 ALR 376, more than 30 years ago. 'For those who agree with me,' said Mr. Justice Holmes, 'no distinction can be taken between the Government as prosecutor and the Government as judge.' 277 US at 470. (Dissenting opinion.) 'In a government of laws,' said Mr. Justice Brandeis, 'existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to became a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the Government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.' 277 U.S. at 485. (Dissenting opinion.)" Elkins also cites McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 87 L ed 819, in support of this doctrine and then concludes: "Even less s h o u l d t h e f e d e r a l c o u r t s be a c c o m p l i c e s i n t h e w i l l f u l d i s o b e d i e n c e of a C o n s t i t u t i o n t h e y a r e sworn t o uphold. " Of c o u r s e , t h i s would a p p l y t o a l l of t h e c o u r t s y s t e m s . I n Mapp, s h o r t l y a f t e r E l k i n s , t h e l a s t door was c l o s e d and t h e e x c l u s i o n a r y r u l e was a p p l i e d t o t h e s t a t e c o u r t s . The r u l e may have many of t h e d e f i c i e n c i e s t h a t a r e contended by t h e s t a t e , b u t a c l o s e e x a m i n a t i o n of i t s h i s t o r y would s e e m t o p r e s e n t a s t r o n g c a s e t h a t once t h e r u l e was f o r m u l a t e d t h e une x p l a i n e d , uneven and i g n o b l e a p p l i c a t i o n by t h e j u d i c i a r y l e n t no s t r e n g t h t o t h e r u l e and i t i s c e r t a i n l y no compliment t o j u d i c i a l i n t e g r i t y t o a d m i t t o t h e i n o r d i n a t e l e n g t h of t i m e t h a t t h e " s i l v e r p l a t t e r d o c t r i n e " was i g n o r e d . I n c i d e n t a l t o t h i s m a t t e r t h e s t a t e commented w i t h emp h a s i s i n i t s b r i e f , t h a t S t a t e v. Gardner, 7 7 Mont. 8 , 2 4 9 P . 574 (1926),was n o t c o n s i d e r e d i n B r e c h t b u t was by i m p l i c a t i o n o v e r r u l e d by B r e c h t . The Supreme C o u r t of Montana had a d o p t e d i t s own e x c l u s i o n a r y r u l e a t t h a t t i m e , l o n g p r i o r t o Mapp, and d i d q u o t e from Burdeau, t h e f o u n d a t i o n c a s e , f o r t h e g e n e r a l r u l e q u o t e d i n Gardner. However, Gardner i n v o l v e d t h e " s i l v e r p l a t t e r d o c t r i n e " i n t h e u s e of i l l e g a l l y o b t a i n e d e v i d e n c e by t h e f e d e r a l a u t h o r i t i e s i n a s t a t e c o u r t and used Burdeau t o j u s t i f y t h i s a c t i o n i n an e n t i r e l y d i f f e r e n t context than t h a t under c o n s i d e r a t i o n i n B r e c h t . It m u l d seem f a i r t o assume t h a t Elkins overruled, not Brecht. The argument t h a t t h e e x c l u s i o n a r y r u l e i s wedded t o t h e s o v e r e i g n because t h e o r g a n i z e d o f f i c i a l d o m a r e t h e o n l y o n e s t h a t c a n be d e t e r r e d b e c a u s e t h e i n j u r y t o t h e v i c t i m c a n n o t be r e s t o r e d o r r e p a r a t i o n comes t o o l a t e , and t h a t a l l o t h e r s would have no p r o s e c u t i o n m o t i v e and c o u l d n o t be f a m i l i a r w i t h t h e r u l e i s a n unwarranted g e n e r a l i z a t i o n t h a t c o m p l e t e l y d i s r e g a r d s t h e changes t h a t have t a k e n p l a c e i n o u r p o l i t i c a l and s o c i a l structure and the legal impact of the cases on the subject since the rule was announced in Burdeau in 1921; with partic- ular reference to -and Elkins. Katz It also follows that no consideration is being given to the cases cited, including Brecht, where there is a merger of the Fourth and Fifth Amendments in a violation of a personal right, particularly when authority cited by the state agrees that Fifth Amendment violations are excluded when done by a private person. No thought is given to the Montana Constitution or statutes previously cited. Fin- ally, it fails altogether to recognize the massive increase in the incidents of the invasions of the right of privacy of the private citizen or the scientific advances that have made this possible, even though the United States Congress has finally recognized the problem and has given it priority consideration. Further, the arguments erroneously characterize the "private person" as the little old lady next door who has a desire to assist in law enforcement. When in fact a great many of the pure Fourth Amendment cases cited by the state involve "institutional", "quasi" or "private" police, i.e., airport guards, building security personnel, private detectives and we also have private corporation police like railroad police and self-help groups and investigators for political committees. Experience simply does not cast these groups of "private" persons in the minority. The standards agreed to by the state simply do not fit this segment of the private sector. Methods designed to protect the multiple rights of the whole of our citizenry are not intended to free criminals or discourage the participation of citizens in the enforcement of our laws. If one considers that any exclusionary process only excludes "unreasonable" conduct it can readily be seen that all intrusions are not unreasonable. Like it or not unreasonable or illegal intrusions knowingly accepted and used, from the private sector by the government amount to an extension of the silver platter doctrine condemned by Elkins, particularly when viewed in the light of judicial integrity emphasized in Elkins. has been argued that Elkins did not disturb It Burdeau, it may not have been clear in the pusFourth Amendment context, but a close examination does move one to believe that the silver platter concept was condemned in any context. This Court, however, does recognize the multitude of problems that arise and have arisen over the decades in an attempted solution of this very difficult problem and a final solution may well require that recognition be given to the wide disparity in terms of knowledge, motive and awareness of the widely diverse groups, institutions and individuals sought to be controlled and collusion avoided by the exclusionary rule. If personal rights are to be protected and governmental integrity preserved the answer does not lie in ignoring the problem, as did the federal system for so many years, but a possible examination of the rigidity of the rule itself might be in order. The solution could very well be partially achieved by an examination of standards for reasonableness in these matters applicable to government on the one hand, institutional police and private persons as we move down in this diverse process. This is much the same problem to be faced under a statutory "private" arrest, when it involves a search and seizure incident thereto. The Court is mindful that by respondent's brief and case analysis there have been constitutional and statutory questions raised that bear directly on this problem answered. which we have not Under the facts and circumstances of this case, we feel that we should not and therefore have not done so. As stated at the beginning of this opinion, the instant case can be distinguished from Brecht. It might be well to establish that it is distinguished on legal grounds. The Court does not call into question the good faith or integrity nor offer criticism of any of the parties here involved, for whatever personal reasons controlled the decisions made that night. The testimony clearly reveals two outstanding departures from the doctrine urged by state and amicus. (1) The transcript quoted reveals the reporting of a crime to the proper authority, with abundant probable cause for arrest procedure. At this point a crime against the state, not McDonalds, was involved. The public interest thereafter was subordinated to that of a private interest when the store manager was permitted the luxury of self-help. No matter how laudable the motives, there is no proof that adverse publicity would have been any greater had the matter been handled by the police. There is no legal difference if the crime reported had been a deceased person by unnatural means. After the manager obtained the drug it was promptly turned over to the police. This then is not the example used in argument of an innocent assist to the government with no conviction motive, or why else the initial report and the delivering of the evidence for prosecution. (2) The conference with officials :.%forehanddefeats, at least impliedly, the ignorance of the rule concept. Further the state endorsed in its cited law review article, 34 Montana Law Review 187, 197, while explaining private cooperation with the police creates less of a problem than might be imagined, that: " * * * As soon as a private individual acts in association or cooperation with the police, the courts have held that his act is deemed to be the act of the state. [Miramontes v. Superior Court for County of San Mateo, 25 Cal.App.3rd 877, 102 Cal. Rptr. 182 (1972).] Not only will evidence be excluded if a private individual works at the direction or supervision of the police, but it will also be excluded when the police are guilty o f no more t h a n j u s t ' i d l y s t a n d i n g b y ' " . S t a p l e t o n v . S u p e r i o r C o u r t o f L.A. County, 70 Cal.2d 97, 4 4 7 P.2d 967, 970 ( 1 9 6 9 ) ; S t a t e e x r e l . S a d l e r v. D i s t r i c t C o u r t , 70 Mont. 378, 225 P. 1000 ( 1 9 2 4 ) . A d m i t t e d l y t h e f a c t s of t h e c a s e p r e s e n t e d by t h e s t a t e t h r o u g h t h e law r e v i e w a r t i c l e a r e much s t r o n g e r t h a n o u r s . However S t a p l e t o n d o e s h o l d : " * * * t h e p o l i c e need n o t have r e q u e s t e d o r d i r e c t e d t h e s e a r c h i n o r d e r t o be g u i l t y of ' s t a n d i n g i d l y b y ' ; knowledge of t h e i l l e g a l s e a r c h c o u p l e d with a f a i l u r e t o protect t h e [defendant's] r i g h t s a g a i n s t such a s e a r c h s u f f i c e s . " The l e g a l impact drawn from a l l of t h e f a c t s seems t o come much more under S t a p l e t o n t h a n B r e c h t , however, i n e i t h e r c a s e t h e d i s t r i c t c o u r t was The judgment of t h e Justice W e concur: .................................. Justices --Hon. M. '&es Sorte, D i s t r i c t Judge, s i t t i n g i n p l a c e of M r . Chief J u s t i c e James T . H a r r i s o n . Mr. Justice Wesley Castles dissenting: I dissent. I would squarely overrule State v. Brecht, 157 Mont. In Brecht, defendant was charged with murder in the first degree. Sandra Brumfield, sister of the deceased, was allowed to testify to a telephone conversation between defendant and the deceased. Both Sandra and the deceased were, at that time, residing in the home of their mother. During the telephone conversation, Sandra picked up an extension telephone and listened to the conversation. She was allowed to testify at the trial that she heard the defendant tell the deceased, "I got my shotgun out of hock, I am coming down and I will use it if I have to." This Court held that the admission of this testimony violated the defendant's Fourth and Fourteenth Amendment rights and his rights under Article 111, Sec. 7, of the 1889 Montana Constitution. In so holding, this Court stated at pages 270, 271, that the exclusionary rule applied to searches and seizures conducted by private individuals: "The violation of the constitutional right to privacy and against compulsory self-incrimination is as detrimental to the person to whom the protection is guaranteed in the one case as in the other. To distinguish between classes of violators is tantamount to destruction of the right itself. "This Court in the present case would be remiss were it not to recognize that evidence obtained by the unlawful or unreasonable invasion of several of the constitutionally protected rights guaranteed to its citizens by both the federal and Montana constitutions properly comes within the contemplation of this Court's exclusionary rule. To do otherwise would lend Court approval to a fictional distinction between classes of citizens: those who are bound to respect the Constitution and those who are not. Were the exclusionary rule to recognize such distinctions it would by indirection circumvent the rule established by this Court to enforce these rights and would in fact render the rule and the constitutional guarantees it protects meaningless." Leaving aside for the moment issues relating to the Montana Constitution, the plain and simple truth is that a seizure by a private individual does not violate the federal Constitution so long as that individual cannot be deemed an agent of the state because of his involvement with the police. In the case of Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L ed 1048 (1921), the defendant's employer had entered defendant's office, drilled his safe and broken the locks on his desk. A few months later, the employer turned the papers found over to the government. In response to a motion asking for an order for the return of the books, papers, memoranda, correspondence, and other data in the possession of the Special Assistant to the Attorney General of the United States, the Court stated: "The 4th Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the 4th Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued. "In the present case the record clearly shows that no official of the Federal government had anything to do with the wrongful seizure of the petitioner's property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the 4th Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another." Although the scope of the exclusionary rule has expanded immensely since the decision in Burdeau in 1921, that decision has not been deviated from by the courts of this country. The United States Supreme Court in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L ed 1782 (1949), held that the Fourth Amendment's search and seizure prohibitions were applicable to the states under the due process clause of the Fourteenth Amendment. - 1 ?G' Its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 408-f-, 6 L ed 2d $6?4 (1961), by holding that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court", made the exclusionary rule applicable to the states. However, in order to invoke the exclusionary rule on federal constitutional grounds there must have been, as a condition precedent, some violation of the federal constitution. Mapp, supra. A search and seizure by a private individual does not violate the Fourth Amendment. Burdeau, supra. Likewise, as the Fourteenth Amendment is directed to the states and not to private individuals, a search and seizure by a private individual does not violate the Fourteenth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. . 2022, 29 L ed 2d 564 (1971) Thus, because a search and seizure by a private individual does not violate the federal constitution, it follows that the exclusionary rule is not mandated by the federal constitution. Here, the events transpiring at the police station show there was no involvement by the police in this search and seizure nor was Hillis an instrumentality of the police. I cannot accept the proposition that a person becomes an instrumentality of the police merely by reporting an incident to the police. On the other hand, the police cannot use a person who reports a crime as an unwitting tool of the police to achieve ends forbidden to the police themselves. Such is not the case here. There is ab- solutely no evidence to indicate that the police consciously played dumb or refused to make the search and seizure for the purpose of e n c o u r a g i n g a s e a r c h and s e i z u r e by a p r i v a t e individual. The f a c t t h e p o l i c e d i d n o t a c t i v e l y e n t e r i n t o t h e i n c i d e n t by p r o h i b i t i n g H i l l i s from making t h e s e a r c h and s e i z u r e o r by o b t a i n i n g a s e a r c h w a r r a n t and making t h e s e a r c h and s e i z u r e t h e m s e l v e s s h o u l d n o t r e s u l t i n H i l l i s b e i n g deemed a n i n s t r u m e n t a l i t y of t h e p o l i c e and s u p p r e s s i o n of t h e e v i d e n c e . I t i s n o t t h e p o l i c y o f t h i s s t a t e t o i n h i b i t t h e r e p o r t i n g of crime t o t h e police. One of t h e m o t i v e s of H i l l i s t h r o u g h o u t t h i s i n c i d e n t was t o p r o t e c t t h e r e p u t a t i o n of McDonald's by p r e v e n t i n g bad p u b l i c i t y which might e n s u e i f uniformed p o l i c e w e r e t o make t h e s e a r c h and s e i z u r e on t h e p r e m i s e s . knew t h i s . The p o l i c e I f t h e b u s i n e s s community i s aware t h a t a r e p o r t t o t h e p o l i c e must r e s u l t i n an immediate p o l i c e r e s p o n s e w i t h o u t r e g a r d f o r t h e consequences o r i t s e f f e c t on i t s b u s i n e s s ' good- w i l l , t h e r e i s no d o u b t i n o u r minds t h a t t h e r e p o r t i n g of i n c i d e n t s t o t h e p o l i c e w i l l be i n h i b i t e d and l e s s e n e d . Thus, I would d e c l i n e t o h o l d t h a t H i l l i s was a n i n s t r u m e n t a l i t y o f t h e p o l i c e f o r p u r p o s e s of t h e i n s t a n t s e a r c h and s e i z u r e . Defendant c o n t e n d s t h e s e a r c h and s e i z u r e of t h e s u b s t a n c e by Robert H i l l i s from d e f e n d a n t ' s c o a t p o c k e t v i o l a t e d A r t i c l e 11, S e c t i o n s 1 0 and 11, of t h e 1972 Montana C o n s t i t u t i o n and s e c t i o n 95-701, R.C.M. 1947, and t h u s must be s u p p r e s s e d by r e a s o n of t h e exclusianary r u l e . Those s e c t i o n s r e a d a s f o l l o w s : The r i g h t of " S e c t i o n 1 0 . R i g h t of P r i v a c y . i n d i v i d u a l privacy is e s s e n t i a l t o t h e well-being of a f r e e s o c i e t y and s h a l l n o t be i n f r i n g e d w i t h o u t t h e showing o f a c o m p e l l i n g s t a t e i n t e r e s t . " S e c t i o n 11. S e a r c h e s and s e i z u r e s . The p e o p l e s h a l l be s e c u r e i n t h e i r p e r s o n s , p a p e r s , homes and e f f e c t s from u n r e a s o n a b l e s e a r c h e s and s e i z u r e s . No w a r r a n t t o s e a r c h any p l a c e , o r s e i z e any p e r s o n o r t h i n g s h a l l i s s u e without describing t h e p l a c e t o be s e a r c h e d o r t h e p e r s o n o r t h i n g t o be s e i z e d , o r w i t h o u t p r o b a b l e c a u s e , s u p p o r t e d by o a t h o r a f f i r m a t i o n reduced t o writing." "95-701. S e a r c h e s and s e i z u r e s - - w h e n authorized. A s e a r c h o f a p e r s o n , o b j e c t o r p l a c e may b e made and i n s t r u m e n t s , a r t i c l e s o r t h i n g s may b e s e i z e d i n accordance with t h e provisions of t h i s c h a p t e r when t h e s e a r c h i s made: "(a) A s an incident t o a lawful a r r e s t . " ( b ) With t h e c o n s e n t o f t h e a c c u s e d o r o f a n y o t h e r p e r s o n who i s l a w f u l l y i n p o s s e s s i o n o f t h e o b j e c t o r p l a c e t o be s e a r c h e d , o r who i s b e l i e v e d upon r e a s o n a b l e c a u s e t o b e i n s u c h l a w f u l p o s s e s s i o n by t h e p e r s o n making t h e search. " ( c ) By t h e a u t h o r i t y o f a v a l i d s e a r c h w a r r a n t . " ( d ) Under t h e a u t h o r i t y and w i t h i n t h e s c o p e of a r i g h t of l a w f u l i n s p e c t i o n g r a n t e d by l a w . " Even i f t h e s e a r c h and s e i z u r e by H i l l i s was a v i o l a t i o n t h e foregoing p r o v i s i o n s , t h e f a c t s of t h i s c a s e not warrant an a p p l i c a t i o n of t h e exclusionary r u l e . I n d i s c u s s i n g t h e purpose of t h e exclusionary r u l e , t h e Supreme C o u r t o f t h e U n i t e d S t a t e s h a s r e c e n t l y s t a t e d i n U n i t e d S t a t e s v. C a l a n d r a , U.S. , 94 S.Ct. , 38 L e d 2d 561, "The p u r p o s e o f t h e e x c l u s i o n a r y r u l e i s n o t t o r e d r e s s t h e i n j u r y t o t h e privacy of t h e s e a r c h victim: " ' [ T l h e r u p t u r e d p r i v a c y o f t h e v i c t i m s ' homes and e f f e c t s c a n n o t be r e s t o r e d . Reparation comes t o o l a t e . ' L i n k l e t t e r v . Walker, 381 U.S. 618, 637, 1 4 L e d 2d 601, 85 S . C t . 1 7 3 1 ( 1 9 6 5 ) . " I n s t e a d , t h e r u l e ' s prime p u r p o s e i s t o d e t e r f u t u r e u n l a w f u l p o l i c e c o n d u c t and t h e r e b y e f f e c t u a t e t h e g u a r a n t e e o f t h e F o u r t h Amendment a g a i n s t u n r e a s o n a b l e s e a r c h and s e i z u r e s : "'The r u l e i s c a l c u l a t e d t o p r e v e n t , n o t t o r e p a i r . Its p u r p o s e i s t o d e t e r - - t o compel r e s p e c t f o r t h e c o n s t i t u t i o n a l guaranty i n t h e only e f f e c t i v e l y a v a i l a b l e way--by removing t h e i n c e n t i v e t o d i s r e g a r d i t . ' E l k i n s v . U n i t e d S t a t e s , 364 U.S. 206, 217, 4 L e d 2d 1669, 80 S . C t . 1437 ( 1 9 6 0 ) . "Accord, Mapp v . Ohio, 367 U.S. 643, 656, 6 L e d 2d 1 0 8 1 , 8 1 S.Ct. 1684, 84 ALR2d 933 ( 1 9 6 1 ) ; Tehan v . U n i t e d S t a t e s , e x r e l . S h o t , 382 U.S. 406, 416, 1 5 L e d 2d 453, 86 S . C t . 459 ( 1 9 6 6 ) ; T e r r y v . Ohio, 392 U.S. 1, 29, 20 L e d 2d 889, 88 S . C t . 1868 ( 1 9 6 8 ) . I n sum, t h e r u l e i s a j u d i c i a l l y - c r e a t e d remedy d e s i g n e d t o s a f e g u a r d F o u r t h Amendment r i g h t s generally through i t s d e t e r r e n t e f f e c t , r a t h e r than a personal c o n s t i t u t i o n a l r i g h t of t h e p a r t y aggrieved. " D e s p i t e i t s broad d e t e r r e n t p u r p o s e , t h e exc l u s i o n a r y r u l e h a s n e v e r been i n t e r p r e t e d t o p r o s c r i b e t h e u s e of i l l e g a l l y - s e i z e d e v i d e n c e i n a l l proceedings o r a g a i n s t a l l persons. A s w i t h any r e m e d i a l d e v i c e , t h e a p p l i c a t i o n of t h e r u l e h a s been r e s t r i c t e d t o t h o s e a r e a s where i t s r e m e d i a l o b j e c t i v e s a r e t h o u g h t most e f f i caciously served." I n d e c l i n i n g t o extend t h e exclusionary r u l e t o t h e u s e i n grand j u r y p r o c e e d i n g s of e v i d e n c e s e i z e d i n v i o l a t i o n o f t h e F o u r t h Amendment, t h e C o u r t i n C a l a n d r a s t a t e d , a t page 573 " A g a i n s t t h i s p o t e n t i a l damage t o t h e r o l e and f u n c t i o n s of t h e g r a n d j u r y , w e must weigh t h e b e n e f i t s t o be d e r i v e d from t h i s proposed e x t e n s i o n of t h e exclusionary r u l e . S u p p r e s s i o n of t h e u s e of i l l e g a l l y - s e i z e d e v i d e n c e a g a i n s t t h e search victim i n a criminal t r i a l i s thought t o be a n i m p o r t a n t method of e f f e c t u a t i n g t h e F o u r t h Amendment. But i t d o e s n o t f o l l o w t h a t t h e F o u r t h Amendment r e q u i r e s a d o p t i o n of e v e r y p r o p o s a l I n Alderman t h a t might d e t e r p o l i c e misconduct. v . United S t a t e s , 394 U.S., a t 1 7 4 , 22 L ed 2d 176, f o r example, t h i s C o u r t d e c l i n e d t o e x t e n d t h e e x c l u s i o n a r y r u l e t o one who was n o t t h e v i c t i m of t h e u n l a w f u l s e a r c h : " ' T h e d e t e r r e n t v a l u e s of p r e v e n t i n g t h e i n c r i m i n a t i o n of t h o s e whose r i g h t s t h e p o l i c e have v i o l a t e d have been c o n s i d e r e d s u f f i c i e n t t o j u s t i f y t h e s u p p r e s s i o n of p r o b a t i v e e v i d e n c e even though t h e c a s e a g a i n s t t h e d e f e n d a n t i s weakened o r d e s t r o y e d . W a d h e r e t o t h a t judgment. e But w e a r e n o t convinced t h a t t h e a d d i t i o n a l b e n e f i t s of e x t e n d i n g t h e e x c l u s i o n a r y r u l e t o o t h e r def e n d a n t s would j u s t i f y f u r t h e r encroachment upon t h e p u b l i c i n t e r e s t i n prosecuting t h o s e accused of c r i m e and h a v i n g them a c q u i t t e d o r c o n v i c t e d on t h e b a s i s o f a l l t h e e v i d e n c e which e x p o s e s t h e truth. ' "We t h i n k t h i s o b s e r v a t i o n equally applicable i n the present context. "Any i n c r e m e n t a l d e t e r r e n t e f f e c t which might be a c h i e v e d by e x t e n d i n g t h e r u l e t o g r a n d j u r y p r o c e e d i n g s i s u n c e r t a i n a t b e s t . Whatever d e t e r r e n c e o f p o l i c e misconduct may r e s u l t from t h e e x c l u s i o n of i l l e g a l l y - s e i z e d e v i d e n c e from c r i m i n a l t r i a l s , it i s u n r e a l i s t i c t o assume t h a t a p p l i c a t i o n o f t h e r u l e t o g r a n d j u r y proceedi n g s would s i g n i f i c a n t l y f u r t h e r t h a t g o a l . Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation. The incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the illegally-seized evidence in a subsequent criminal prosecution of the search victim. For the most part, a prosecutor would be unlikely to request an indictment where a conviction could not be obtained. We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury." From the foregoing excerpts from Calandra, it can be readily seen that the purpose of the exclusionary rule is to deter future unlawful official conduct and not as a bonus to the criminal defendant whose rights have been violated. Where there has been no unlawful official misconduct, as in the present factual situation, the reason for the rule fails. Even if it be conceded that the reason for the exclusionary rule is to deter all illegal conduct, official or private, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. Calandra, supra. Thus, whether the exclusionary rule will be applied in any given case comes down to a balancing test: whether the rule's value as a deterrent to misconduct outweighs the public interest in preventing and prosecuting crime. As stated in the Note at 34 Montana Law Review 187, 195- "Logic indicates that certain requirements must be met if the rule is in fact going to fulfill its deterrent function. For one thing, the person committing the search and seizure must have an interest in obtaining a conviction with the information he secures. Obviously the rule is of no value where, for example, the police have 'no interest in prosecuting, or are willing to forego successful prosecution in the interest of serving another goal.' * * * "The other requirement, which on the surface seems elemental, is that the person involved in the search and seizure must at least be aware of the rule. While it is not unusual to expect the police to be familiar with certain salient rules of evidence, it does seem unlikely that a layman with no interest or intent of securing the conviction of criminals would have much knowledge in this area. " The testimony set forth at the beginning of the majority opinion shows that Hillis had two motives for removing the substance from defendant's pocket, neither of which was to prosecute or convict defendant: (1) He wanted to remove the substance so that the other employees would not get the feeling that they could with impunity possess drugs on the McDonald's premises; (2) he desired to keep the police from getting involved in order to protect the reputation of McDonald's. Whether or not the desire to keep the police from getting involved was proper, Hillis was not motivated to secure a conviction of defendant. Neither is there any evidence of Hillis' awareness of the exclusionary rule. Even if it had been established that Hillis had been motivated to secure a conviction or had known of the exclusionary rule, the application of that rule in the case of a search and seizure by a private individual, as here, would not be appropriate. The function of the exclusionary rule is to deter, not to repair. Despite the motivation or knowledge of the exclusionary rule in the present case, the Court is bound to look at what effect an application in this case would have on future cases of search and seizure by private individuals. We believe it would be a rare case where a private individual conducting an illegal search and seizure would have both the motivation to convict and an awareness of the exclusionary rule. Thus, the deterrent effect of imposing the exclusionary rule in this case would be speculative at best. Such speculative value is here outweighed by the public interest in preventing and prosecuting crime. When the reason of a rule ceases, so should the rule itself. Section 49-102, R.C.M. 1947. It is difficult to determine just what the legal basis is for the majority opinion other than a love for the exclusionary rule. Heretofore I have attempted to show that Hillis was not in any manner an instrumentality of the police and in no sense was the proverbial "silver platter doctrine" involved here. Moreover, the majority opinion states that when Hillis reported to the police there was "abundant probable cause for arrest procedure"! Surely the majority does not mean that. Compare the holding on probable cause for an arrest here with that in State v. Thorsness, Mont . 1 - - 31 P.2d , St.Rep. 895, written by Justice Haswell and concurred in by Justice Daly. Thereafter the majority approves the statement in Stapleton v. Superior Court of L. A. County, 70 Cal.2d 97, 447 P.2d 967, 970, that: "Not only will evidence be excluded if a private individual works at the direction or supervision of the police, but it will be also excluded when the police are guilty of no more than 'just idly standing by ' " . In my view this is an unwise extension of the exclusionary rule. Mr. Justice John Conway Harrison concurring in Justice castles' dissent : Although I did not participate in Brecht I join Justice Castles in his dissent here and would overrule Brecht. No other jurisdiction that I can find has extended the "silver platter1' doctrine to include all that Brecht covers. In my opinion the net effect of Brecht further hamstrings law enforcement officials. C33j Justice

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