MT: Informant’s consent to record defendant in private place violated MT Constitution

Montana holds that an informant’s consent to record defendant in private place violated the state Constitution. [This case was under submission for two years; it was 3-1-3.] State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489 (2008):

[*P54] For the above-stated reasons, we hold that the electronic monitoring and recording of the Defendants’ conversations with the confidential informants, notwithstanding the consent of the confidential informants, constituted searches subject to the warrant requirement of Article II, Section 11 of the Montana Constitution. The electronic monitoring and recording of those conversations without a warrant or the existence of an established exception to the warrant requirement violated the Defendants’ rights under Article II, Sections 10 and 11. As a result, we hold the District Court erred in denying the Defendants’ motions to suppress evidence derived from the warrantless electronic monitoring and recording of the three conversations at issue on the basis that the activities at issue did not constitute searches.

Chronologically:

[*P24] Similarly here, we conclude Brown provides little, if any, guidance in resolving the issue before us in light of the reliance on federal jurisprudence–and limited analysis and application of the provisions of the Montana Constitution–in that case. Therefore, we overrule Brown and again recognize that Solis is not controlling precedent. As a result, we examine the issue before us anew, applying more current and consistent interpretations of Article II, Sections 10 and 11 of the Montana Constitution.

II. Analysis Under Current Montana Constitutional Search and Seizure and Right To Privacy Jurisprudence

[*P25] The issue in the present case is whether the warrantless electronic monitoring and recording of a face-to-face conversation with the consent of one participant in the conversation violates the other participant’s rights to privacy and to be free from unreasonable searches and seizures guaranteed by Article II, Sections 10 and 11. The initial inquiry in addressing this issue is determining whether such conduct constitutes a search. See State v. Scheetz, 286 Mont. 41, 46, 950 P.2d 722, 724 (1997). A search is “the use of some means of gathering evidence which infringes upon a person’s reasonable expectation of privacy.” Hardaway, P 16. “A search occurs when the government infringes upon an individual’s expectation of privacy that society considers objectively reasonable.” Where no objectively reasonable expectation of privacy exists, a “search” does not occur within the contemplation of Article II, Section 11 of the Montana Constitution. State v. Hamilton, 2003 MT 71, P 17, 314 Mont. 507, P 17, 67 P.3d 871, P 17 (citing Scheetz, 286 Mont. at 46, 950 P.2d at 725).

[*P30] Here, the face-to-face conversations between the Defendants and one other individual were within the Defendants’ private homes and, in Hamper’s case, in the confines of a vehicle. The Defendants did not conduct their conversations where other individuals were present or physically within range to overhear the conversations. In other words, the Defendants kept their activities and conversations away from prying eyes (and ears), and did not expose their conversations to the public’s “independent powers of perception.” We conclude the Defendants exhibited actual subjective expectations of privacy in the face-to-face conversations they held in private settings.

[*P37] Based on the foregoing, we conclude each Defendant’s expectation of privacy in the conversations at issue here is one society is willing to accept as reasonable. As stated above, “[a] search occurs when the government infringes upon an individual’s expectation of privacy that society considers objectively reasonable.” Hamilton, P 17. Thus, we further conclude that the electronic monitoring and recording of the Defendants’ in-person conversations constituted searches within the contemplation of the Article II, Sections 10 and 11 rights to privacy and to be free from unreasonable searches.

As for a compelling state interest, the court found recording violated the consent to enter requirement.

[*P46] Similarly, here, the State cannot justify a search under the consent exception as a result of the simple expedient of failing to inform the potential–and physically present–objecting party that the search is being conducted. We conclude that the warrantless searches of the conversations at issue here cannot be justified by the consent exception to the warrant requirement.

[*P53] . . . Consequently, we decline to adopt a particularized suspicion standard to justify the warrantless electronic monitoring and recording of a one-on-one conversation occurring in a vehicle.