STATE v SOLIS
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No. 83-543 IN THE SUPREI4E COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Appellant, -vsGEORGE SOLIS, Defendant and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable H. William Coder, Judge presiding. COUNSEL OF RECORD: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Jim Scheier argued, Asst. Atty. General, Helena J. Fred. Bourdeau, County Attorney, Great Falls, Montana; Charles Lucero argued, Deputy County Atty., Great Falls, Montana For Respondent: Jeffrey T. McAllister argued., Great Falls, Montana Submitted: Decided: Filed: Df.h: '"'84 i "J Clerk October 29, 1984 December 31, 1984 J u s t i c e Frank B. t h e Court. Mr. Morrison, Jr. d e l i v e r e d t h e Opinion of On March 1 6 , 1983, d e f e n d a n t George S o l i s was c h a r g e d by i n f o r m a t i o n w i t h one c o u n t o f f e l o n y t h e f t , i n v i o l a t i o n o f § 45-6-301 (1)( a ) , MCA. T r i a l was t w i c e s c h e d u l e d and v a c a t e d at request the prosecution's Monday, October 3 , 1983. before being rescheduled for The S t a t e f i l e d a " J u s t n o t i c e " o f o t h e r c r i m e s e v i d e n c e on F r i d a y , September 30, 1983, t o g e t h e r w i t h a motion i n l i m i n e t o i n t r o d u c e a v i d e o t a p e . then filed a motion in limine on the morning Defendant of trial, o b j e c t i n g t o t h e t i m e l i n e s s of t h e S t a t e ' s " J u s t n o t i c e " and t h e admission of t h e video t a p e s i n t o evidence. Following an in-chambers h e a r i n g , t h e t r i a l judge s u p p r e s s e d t h e v i d e o t a p e and postponed t r i a l . On October 5 , 1983, a w r i t t e n o r d e r w a s i s s u e d denying t h e p r o s e c u t i o n ' s r e q u e s t t o p r e s e n t e v i d e n c e of o t h e r crimes appeals. the months County of Sheriff's January office M a Pa's & Second a.nd F e b r u a r y employed undercover o f f i c e r from I n d i a n a , pawnshop, The S t a t e W a f f i r m t h e o r d e r of t h e D i s t r i c t Court. e During Cascade and s u p p r e s s i n g t h e v i d e o t a p e . 1983, the Jimmy Emmons, t o a c t a s p r o p r i e t o r of Hand Store. part As of an a that o p e r a t i o n and w i t h Emmons' knowledge, S h e r i f f ' s o f f i c e r s made v i d e o r e c o r d i n g s o f t h e e v e n t s which t r a n s p i r e d . Video r e c o r d i n g s separate occasions. n e c k l a c e s t o Emmons. nine cartons of i n v o l v i n g d e f e n d a n t w e r e made on f i v e O n January On February cigarettes to Emmons' i n t e r e s t i n some t i r e s . dant returned, 28, 1983, 15, Emmons defendant 1983, defend.ant s o l d and. i n q u i r e d s o l d Emmons f o u r B . F . 1983, t h e t h e f t o f as to F i f t y minutes l a t e r , defenGoodrich 8-ply t i r e s and t o l d Emmons he c o u l d g e t more new t i r e s . a r y 18, sold tractor O Februn f o u r t r a c t o r t i r e s matching t h e 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. scheme to obtain Defendant discussed with Emmons his twenty additional tires and burglary charge against him. a pending 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 M.R.Evid. other offenses or acts under Rule 404(b), 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 guar- anteed by the Montana Constitution, was violated. 2. Whether the videotape evidence meets the substan- tive guidelines of admissibility established in Just? Whether the prosecution complied with the procedur- 3. al 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 evi- dence 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." Const. Art. 11, § Mont. 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. not agree. We do 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 nature of a 705, 41 St.Rep. telephone face-to-face conversation. conversation 1659, rely on the as opposed to a An individual using a telephone has no way of knowing whether that conversation is being overheard by other parties. expecta.tion of privacy. Thus, there exists no reasonable 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: .. . the "No different result should obtain where 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. 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. This Court is not bound by decisions of the United States Supreme Court where reaching a contrary result. independent grounds exist for State v. Van Haele (Mont. 1982) , 649 P.2d 1311, 39 St.Rep. 1586. State v. Hyem (Mont. 19811, 630 P.2d In Hyem, the Court divided 202, 38 St-Rep. 891. 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. 3_983), 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 specificall-y recognizes the importance of the right of privacy. In - Haele, 649 P.2d at 1313, Chief Justice Haswell Van 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 section debate to opposition among the to delegates considering Montana Constitution electronic surveillance. the privacy evidences The clear 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 eavesdropping, electronic surveillance, and such type of activities. We also recognize that there may in the future be a legitimate need for such in legitimate police activities. After careful consideration of the rough draft that we did produce, we found that the citizens of Montana were very suspicious of such type of activity. We found from the law enforcement officers we talked to that there was really not a need and such activity was not taking place at this time. We had then decided that what we had done was made constitutional something that we may someday want to regulate or even abolish. There were people that would--testified to our committee that the wiretapping and such should be abolished expressly in the Constitution. It was our feeling, after considering this, that it should not be solidified and cemented into the Constitution; it should be made a legislative matter; and as such, we have removed reference to it from the Constitution." Montana Constitutional Convention, Verbatim Transcript pp. 1682-1683. Delegate Robinson, speaking in opposition to position of Delegate Campbell, said: "I don't see, really, how you can talk about privacy and in the same breath mention the possibility of wiretapping or electronic: surveillance. I think these are probably two most incompatible things that you could ever have." Montana Constitutional Convention, Verbatim Transcript p. 1683. Delegate Dahood said: "After listening to testimony, after examining briefs that were submitted to us, after analyzing the situation, it is inconceivable to any of us that there would ever exist a situation in the State of Montana where electronic surveillance could be justified. And the thinking throughout the the United States is, electronic surveillance shall be justified only in matters involving national security, perhaps in matters involving certain heinous federal crimes where the situation is such that in those instances we must risk the right of individual privacy because there is a greater purpose to be served. But within the area of the State of Montana, we cannot conceive of a situation where we could ever permit electronic surveillance." Montana Constitutional Convention, Verbatim Transcript p. 1687. In Coleman, supra, and Canon, supra, this Court allowed tapping of a telephone without a warrant, where consent was given by one party to the conversation, for the reason that the other party to the telephone conversation could not see what was transpiring therefore assumed decisions may have the at the other end risk gone of of the line and such monitoring. These further than the Constitutional Convention delegates intended. However, this very subject was discussed during the debate and Delegate Robinson said: "Oh, no. You're--there's a difference between your knowing that you're telling me and you know whether there is someone around us listening or if it's just you and I; whereas, on the telephone, you may tell me that and you may suspect that I'm the only one listening, but you certainly may not know that." Montana Constitutional Convention, Verbatim Transcript p. 1686. If we were to extend warrantless eavesdropping beyond the tel-ephone conversation sanctioned in Coleman and Canon, we would clearly be violating the intent of those who drafted the privacy section of our State Constitution. This we refuse to do. We hold that in face-to-face encounters in a private setting, there is a reasonable expectation monitoring is not taking place. invasion of the right of that hidd.en This does not foreclose privacy under appropriate circumstances. Since defendant's privacy expectation was reasonable, it could not be invaded absent a compelling state interest. Mont. Const. Art. 11, S 1 0 . A compelling state interest "exists where the state enforces its criminal laws for the benefit and protection of other fundamental rights of its citizens. l1 180 Mont. State ex rel. Zander v. District Court ( 1 9 7 9 ) 548, 556, 591 P.2d 656, 660. Especially , in situations such as this, where a suspect has engaged in repeated activity thought to be criminal in nature, there exists a compelling state interest for the State to invade an individual's right of privacy. However, even when the State has such a compelling interest, the invasion of an individual's privacy may usually occur only with certain procedural safeguards. In this instance, those safeguards are the ones attached to our right to be free from unreasonable searches and seizures. The State was required to show probable cause to support the issuance of a search warrant. Mont. Const. Art 11, S 11. This area of law is confusing because of the numerous approaches to the right of privacy issue in the case law. There has been unnecessary emphasis placed on distinguishing right to privacy cases from search and seizure cases. The right to privacy is the cornerstone of protections against unreasonable searches and seizures. Thus, a warrantless search can violate a person's right of privacy and thereby violate the right to be free from unreasonable searches and seizures. It is not always feasible to obtain a search warrant. Time constraints sometimes make warrantless searches. it necessary to conduct However, in the instant case the trial judge found that this d-id not "appear to be a situation of exigent circumstances precluding a reasonable opportunity for the said Sheriff's office to seek a prior search warrant." Absent a clear abuse of discretion, the findings of the trial court will be upheld on appeal. On the basis of this finding, we hold that the warrant1-ess recording of defendant's conversations with Jimmy Ernmons violated defendant's right to be free from unreasonable searches. The same rationale applies to eavesdropping by the law enforcement officers who were running the video tape machine. They were entitled here to invade privacy, but not without a warrant. The warrantless unreasonable search. The District Court We concur: Chief Justice Justices eavesdropping constituted an Justice John C. Sheehy, concurring specially: I concur with the result in this case. camera in aurally. the case recorded the The hidden vid.eo defendant visually and The use of the video camera in the manner described i n this case constituted a "search" of the defendant. . See Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576, A warrantless search is - - unreasonable, Per Se 88 S.Ct. 507. unless it falls within one of the defined exceptions to the wa-rrant requirement. Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 I,.Ed.2d 564, 91 S.Ct. 2022. the warrant requirement circumstances necessary generally to arise protect property or to avoid serious injury. (C.A.D.C. 1963), 31-8 F.2d. 205. The exceptions to or out of preserve exigent life or See Wayne v. C. S. No exigent circumstances appear here to justify the warrantless search. Accordingly, the video tape of the defendant in this case, without more, was invalidly evidence. obtained and was properly (".&A l excluded &h3 Justice Chief Justice Frank I. Haswell, specially concurring: I concur in the result for the reasons stated by Justice Sheehy. Mr. Justice Fred J. Weber, specially concurring: I concur in the result for the reasons stated by Justice Sheehy. from Mr. Justice John Conway Harrison, dissenting. I dissent. We are here involved in a case in which known criminal defendants have previously dealt with a "mom and dad" pawn shop, where we are giving them far more than the benefit of the doubt of an invasion of their privacy. In these days where banks are monitored by video equipment, hotels and motels are involved in video taping of customers and many business open all night try to protect their business from persons such as we are here involved with, video tapes run without anyone's privacy being invaded. I find it incredible under these circumstances that the effect of a carefully laid "sting" operation to catch just such people is ruled inadmissible. Lack of knowledge of the people involved, plus the "sting" operator, in my opinion does not render the entire video tape unreliable conversations. to reveal the contents of the See United States v. Knohl (2nd Cir. 1967) , 379 F.2d 427, I would hold it was within the discretion of the trial court to find the video recordings here were reliable and the tape should be admitted into evidence. United States v. Avila (2nd. Cir. 1971), 443 F.2d 792; cert denied 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258. While we have not previously, to my knowledge ever expressly promulgated the requirements that must be met in order to lay a proper foundation for the admission of video recordings into evidence other than in State v. (1972), 158 Mont. 531, 494 P.2d Warwick 627, I note in my research that the general standards for the authentication are widely accepted. See 58 ALR2d 1032 and 29 AmJur2d, evidence, 5436, such standards are set forth in various forms in other states and in the Federal Courts including Warwick, supra. I think the proper test for such admission is set forth in U.S. v. Biggins (5th Cir. 1977), 551 F.2d 64, where the Court held: "The trial court properly admits a sound recording into evidence only when the party introducing it carries its burden of going forth with the foundation evidence demonstrating that the recording as played as an accurate reproduction of the relevant sounds previously audited by the witness. As a general rule, at least in the context of a criminal trial, this requires the prosecution to go forward with respect to the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in relevant portions of the recording and the identification of the relevant speakers." See also U.S. v. McMillan 101, cert. denied, 421 U.S. 782 (1975); U.S. 426. (8th Cir. 1974), 508 F.2d 916, 95 S.Ct. 1577, 43 L.Ed.2d v. McKeever (S.Dist. N.Y. 1958), 169 F.Supp Failure to allow the officers witn.essing the sale was error. Viewing the entire operation presented by this case, I find the evidence of guilt so overwhelming that not to allow this evidence to go before a jury is tantamount to declaring the issue of guilt to be irrelevant. I would find that the trial court abused its discretion in not allowing a jury to view a video tape after limiting the tape to the offense charged. I Harrison. join the dissent
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