State v. Bullock

NO. 92-536

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

BILL K. BULLOCK and

EDDIE J. PETERSON,

Defendants and Appellants

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Paul B. Smith (argued),Attorney at Law,

Boulder, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Chris D. Tweeten (argued), Assistant Attorney

General, Helena, Montana

Richard Llewellyn, Jefferson County Attorney,

Deborah J. Butler, Deputy County Attorney,

Boulder, Montana

Submitted: January 17, 1995

Filed:

Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendants, Eddie Peterson and Bill Bullock, were charged

in Jefferson County Justice Court with unlawfully killing a game

animal in violation of § 87-3-103, MCA, and possession of an

unlawfully killed animal in violation of § 87-3-112, MCA. The

Justice Court suppressed all of the State's evidence pertaining to

Peterson, and dismissed the charges against Bullock. The State

appealed to the District Court for a trial denovo pursuant to

§ 46-17-311, MCA. On appeal, the District Court denied the

defendants' motions to dismiss and to suppress evidence. Peterson

then pled guilty to unlawfully killing a gdrnt: dnimdl; Bullock pled

guilty to unlawfully possessing a game animal; and both defendants

reserved their right to appeal the District Court's order denying

their motions to dismiss and suppress evidence pursuant to

§ 46-12-204(3), MCA. Following two orders by this Court which

remanded this case to the District Court for further proceedings,

we affirm the District Court's order which denied the defendants'

motion to dismiss, and reverse the District Court's order which

denied the defendants' motion to suppress evidence.

The issues presented on appeal are as follows:

I. Did the District Court err when it denied the defendants

motion to dismiss the charges against them pursuant to § 46-13-

401121, MCA, based on the State's failure to bring them to trial

within six months from the date of their plea entry?

2. Did defendant Bullock have standing to challenge the

State's entry upon and search of land owned by Peterson?

3. Does Article 11, Section 11, of the Montana Constitution,

prohibit warrantless searches and seizures, under the circumstances

in this case, on private land that falls outside the curtilage of

a dwelling?

FACTUAL BACKGROUND

At about 6:30 a.m. on October 31, 1991, while returning home

from work, Chuck Wing observed what he estimated was a large six or

seven point antlered bull elk on Boulder Hill near Boulder,

Montana. He recognized that the elk was in Hunting District 380

where hunters were allowed to shoot only "spikes" unless they had

a special permit. As Wing observed the elk, he heard a gunshot,

saw the elk fall, and observed two men and a boy standing near a

pickup truck in the vicinity of the fallen elk. He believed the

pickup belonged to defendant Eddie J. Peterson. He then observed

the three people drag the elk to the truck and load it without

field-dressing it. Wing reported the incident to Jefferson County

Sheriff Tom Dawson, who, in turn, relayed the information to Game

Warden Chris Anderson, an employee of the Montana Department of

Fish, Wildlife, and Parks. Anderson traveled from Helena to

Boulder that morning to investigate the incident.

Anderson first interviewed Wing who related the above

information. He then drove to Peterson's home in Boulder, but

Peterson was not at home. Anderson returned to the sheriff's

office where he learned that Peterson had a cabin in Basin Creek.

Rather than try to give directions, Dawson agreed to accompany him

to the cabin. To reach Peterson's cabin, it is necessary to travel

approximately seven miles on a one-lane forest service road which

is bounded by forest on both sides. At least one sign along that

road indicates that the road is bordered by private property and

advises the public to remain on the road.

Peterson's property is separated from the road by a fence.

There is a gate which provides access to his property from the

forest service road. "No Trespassing" signs are posted on trees on

each side of the gate. His cabin is located at the end of a

private road 334 feet from the forest service road. Between the

forest service road and Peterson's cabin, the terrain is slightly

elevated in a way that conceals Peterson's cabin and the other

structures on his property. He moved his cabin beyond the hill at

an earlier time so that it would not be evident to passers by.

When Anderson and Dawson reached Peterson'sproperty, the gate

was open. They entered the property through the gate and drove

approximately 180 feet down Peterson's private road. As they

descended the crest of the hill between his cabin and the forest

service road, they first observed a large bull elk hanging from a

tree in an area about 126 feet from Peterson's cabin. The elk

could not be seen from the public road, nor was there evidence that

it could be seen from any other public location. Peterson

testified that the elk was hanging between his cabin, several

vehicles, and a guest sleeping cabin.

The parties agreed that, in the past, anyone who wished to

enter Peterson's property or drive on his private road had called

co ask permission. In fact, the Jefferson County Sheriff's Office

had done so a few days earlier prior to conducting a search for

lost hunters. On the date in question, neither Dawson nor Anderson

asked or received permission to be on Peterson's property. Neither

had they secured a search warrant, in spite of the fact that

Anderson testified in Justice Court that he believed there was

probable cause that a crime had been committed, that Peterson was

involved, and that Peterson still possessed evidence of that crime.

At the hearing held in the District Court pursuant to the

defendants' motion to suppress, there was disagreement about

exactly what Anderson and Dawson did after observing the elk

hanging near Peterson's cabin. However, in stipulations filed with

the court earlier, the parties agreed that after observing the elk,

Anderson and Dawson went over to examine it. After conducting the

examination, Anderson then requested that Peterson take him and

Dawson to the place where the elk was killed. Peterson did so, hut

at the site where the law enforcement officers were taken, there

were no elk tracks--only a pile of the elk's entrails. It was

apparent to Anderson that the elk had not been killed at that

location.

Anderson then confronted Peterson with the information he had

received from Wing. Peterson provided him with an explanation that

ultimately was found to be inaccurate. Bullock was then

questioned, provided responses consistent with Peterson's, and

declined the State's offer of immunity in exchange for testimony

that would incriminate Peterson.

The following day, Anderson returned to Peterson's cabin and

confiscated the elk carcass.

On November 8, 1991, Peterson was charged in Jefferson County

Justice Court with unlawfully killing a game animal in violation of

5 87-3-103, MCA. Bullock was charged with possession of an

unlawfully killed animal in violation of § 87-3-112, MCA. Both

defendants pled not guilty to those charges on November 18, 1991.

An amended complaint was filed on December 3, 1991, which included

additional charges against Bullock. The defendants filed their

initial appearance and pled not guilty to the amended complaint on

December 18, 1991.

The charges against both defendants were set for trial on

March 6, 1992. However, on January 22, 1992, the defendants moved

to suppress all evidence obtained by the State as a result of

Anderson's and Dawson's entry onto Peterson's property without a

search warrant.

On February 28, 1992, the Justice Court granted the

defendants' motion; it suppressed all evidence, whether verbal or

physical "connected to the chain of events concerning Eddie

Peterson's case"; and it dismissed all charges against Bill

Bullock.

On March 2, 1992, the State appealed to the District Court for

the Tenth Judicial District in Jefferson County pursuant to

§ 46-17-311,MCA, and asked for trial denovo. On June 30, 1992, the

defendants moved the District Court for an order dismissing the

charges against them pursuant to § 46-13-401(2),MCA, because the

offenses alleged were misdemeanors, and they had not been brought

to trial within six months. In the alternative, the defendants

renewed their motion to suppress all evidence that had been

gathered by the State without the benefit of a search warrant.

On August 7, 1992, the District Court denied defendants'

motions based on the facts which had been stipulated to by the

parties. On August 26, 1992, the defendants pled guilty pursuant

to 5 46-12-204(3),MCA, while preserving their right to appeal the

District Court's denial of their motions.

The defendants originally filed their notice of appeal on

October 23, 1992. However, we have since remanded to the District

Court for evidentiary proceedings and for imposition of sentence.

Those proceedings have been completed. We now consider the merits

of the issues raised on appeal.

ISSUE 1

Did the District Court err when it denied the defendants'

motion to dismiss the charges against them pursuant to

5 46-13-401(2), MCA, based on the State's failure to bring them to

trial within six months from the date of their plea entry?

Peterson and Bullock contend that since they were charged with

misdemeanor offenses, § 46-13-401(2), MCA, required that they be

brought to trial within six months from the date of their initial

appearance. They initially appeared on November 18, 1991, and

trial was not scheduled in the District Court until August 26,

1992, which was more than six months later. They contend that our

prior decisions in Stale v. Knox (l984), 207 Mont. 537, 675 P.2d 950,

and Stare v. Sunford (19901, 244 Mont. 411, 796 P.2d 1084, are

inapplicable because there was no trial in the Justice Court, and

that instead, the result in this case is controlled by our decision

in Slale v. Ronrzingen (19841, 213 Mont. 358, 691 P.2d 1348. The State

responds that § 46-13-401(2),MCA, applies only to justice court

and that there is no practical reason for distinguishing this case

from Sanford based simply on the manner in which the cases were

resolved in the Justice Court

Whether the District Court properly denied the motion to

dismiss is a legal issue which we review to determine whether the

district court's interpretation was correct. tale v. Muntz (Mont.

1994), 887 P.2d 251, 253, 51 St. Rep. 1527, 1528 (citing Dotingv. Trunk

(1993), 259 Mont. 343, 856 P.2d 536)

Section 46-13-401(2),MCA, provides that:

After the entry of a plea upon a misdemeanor charge,

the court, unless good cause to the contrary is shown,

shall order the prosecution to be dismissed, with

prejudice, if a defendant whose trial has not been

postponed upon the defendant's motion is not brought to

trial within 6 months.

We held in Ronningen that the "speedy trial" test which is

applicable in district court is not applicable to misdemeanors

prosecuted in justice court, and that where a defendant has not

requested a delay, the six month standard is the sole consideration

for speedy trial analysis, absent good cause to hold otherwise. In

that case we held that the retirement of the presiding judge did

not constitute good cause for delay past six months. However,

Ronningen was not concerned with the situation where charges are

resolved in justice court and one or the other party appeals to the

district court for a trial de n o w . We first addressed the

applicability of § 46-13-401(21, MCA, to that situation in State 1)

Knox. There, we held that where the defendant had received a trial

in city court within six months from the date of his initial

appearance, and then appealed to district court for a trial denovo,

5 46-13-401(2), MCA, was inapplicable to the proceedings in

district court, but that the time for conducting a trial in the

district court is controlled by the criteria established in Barkerv

Wingo (19721, 407 U . S . 514, 523, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d

101, 112-13. We affirmed that rule in Sunford, and again in Mantz,

887 P.2d at 253 (citing Doting, 856 P.2d 536).

In Mantz, 887 P.2d at 253, we pointed out that "we have already

interpreted this statute as inapplicable to those situations in

which the case comes from justice court to a trial de novo in

district court."

We cited from Surford for the principle that:

Once an action is appealed from justice to district

court, it is treated as if it were a new trial.

Questions regarding speedy trial in cases concerning new

trials are analyzed under the constitutional standards of

Barkerv. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972).

The defendants contend, however, that a trial denovo infers a

second trial and that there can be no trial denovo without a first

trial. While that may be correct based on a strict definition of

the term, it is not correct as the term is used in our statutes

providing for trial denovo in district court. Section 46-17-311,

MCA, provides that all cases appealed from a justice court to the

district court must be tried anew, and that the prosecution may

appeal under the circumstances provided for in § 46-20-103, MCA.

That statute provides in relevant part that:

(2) The state may appeal from any court order or

judgment the substantive effect of which results in:

(a) dismissing a case;

. . . .

(e) suppressing evidence . . . .

While this Court was not unanimous in its conclusion that

46-13-401 , MCA, does not apply to misdemeanor charges appealed

(2)

to the district court ( e Mintz,

se Justices Trieweiler and Hunt

dissenting), all members do concur that for purposes of applying

that rule there is no basis for distinguishing between cases

appealed after trial in the justice court and cases appealed from

disposition in some other fashion in justice court. So long as the

justice court jurisdiction is exhausted within six months by some

action which authorizes appeal de novo to the district court,

5 46-13-401(2), MCA, has been satisfied. For these reasons, we

analyze the defendants' motion to dismiss based on the test

established in Barkerv. Wingo.

The Barker test requires courts to consider (1) the length of

the delay; (2) the reason for the delay; 1 1 the assertion of the

3

right to a speedy trial by the defendant; and (4) the prejudice to

the defense. Mantz, 887 P.2d at 253 (citing Barker, 407 U.S. at 530) .

When considering the first factor, the time for calculating

the length of delay commences on the date that the State files its

notice of appeal from justice court. See State v. h'ekon (l99:), 251

Mont. 139, 142, 822 P.2d 1086, 1088. In this case, the State filed

its notice of appeal from the Justice Court on March 2, 1992. The

District Court scheduled a trial for August 26, 1992, 176 days

later. The defendants pled guilty on or before the date set for

trial.

The length of the delay is of primary importance, and the

other factors need not be considered unless the length of delay is

presumptively prejudicial. Slatev. Thompson (l993), 263 Mont. 17, 32,

865 P.2d 1125, 1134-35 (citing Statev. Dahms (1992), 252 Mont 1, 12,

825 P.2d 1214, 1220) . In JVe\lelson, we stated that a delay of less than

six months was not presumptively prejudicial. Likewise, we hold

that the delay of 176 days in this case is not presumptively

prejudicial under the facts in this case. Therefore, we will not

address the other Barker criteria. We affirm the District Court's

denial of the defendants' motion to dismiss.

ISSUE 2

Did defendant Bullock have standing to challenge the State's

entry upon and search of land owned by Peterson?

The State contends that Bullock has no standing to challenge

the legality of the State's entry onto and search of Peterson's

land because he had no ownership interest in that land. It

contends that pursuant to this Court's recent decisions in Slate v.

Gonzales (1988), 231 Mont. 242, 751 P.2d 1063, and Stutev. Powers (1988),

233 Mont. 54, 758 P.2d 761, a party must have some interest in the

property searched before he or she can contest the admissibility of

evidence gathered during the search.

Bullock responds that he was charged with possessing the elk

carcass seized from Peterson's property, and that under our prior

decisions, that possessory interest was sufficient to establish

standing.

We agree that the State construes our prior decisions

regarding standing too narrowly.

Even after the United States Supreme Court retreated from its

"automatic standing" rule in cases where a defendant is charged

with illegal possession of some item, in UnitedStute.sv. Sulvucci (1980),

448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619, we held that

ownership of the property searched is not necessary to establish

standing to object to the legality of a search. Statev. lsom (1982),

196 Mont. 330, 641 P.2d 417. We stated:

Notwithstanding the limitations placed on .Jones[v.

UniledStates (l96O), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d

6971, the Court in Rakas[v. I1linoi.r (1978), 439 U.S. 128, 99

S.Ct. 421, 58 L.Ed.2d 3871, and again in Salvucci,

emphasized that ownership is not a key element in

determining standing. The test for standing is not to be

based on distinctions out of property and tort law: "In

defining the scope of that interest, we adhere to the

view expressed in Jones and echoed in later cases that

arcane distinctions in property and tort law between

guests, licensees, invitees, and the like ought not to

control." See Jones, 362 U.S. at 266, 80 S.Ct. at 733;

Rakus, 439 U.S. at 143, 99 S.Ct. at 430; Salvucci, 448 U.S.

at 91, 100 S.Ct. at 2553; and Rawlings[v. Kentucky (1980)1,

448 U.S. 1981 at 105, 100 S.Ct. 125561 at 2561. The

controlling view, then, seems to be that expressed in

Mancusiv. DeForte (1968), 392 U.S. 364, 88 S.Ct. 2120, 20

L.Ed.2d 1154, in which the Court said that the Katz test

of "'legitimate expectation of privacy' makes it clear

that capacity to claim the protection of the Fourth

Amendment depends not upon a property right in the

invaded place, but upon whether the area was one in which there wu.s a

governmental intrusion . " See Mancusi,

veasonable expectation offr.eedotn~om

392 U.S. at 368, 88 S.Ct. at 2124.

Following this rationale, we concluded in Isom that a defendant

who was a guest in his uncle's home at the time that it was

searched had standing to object to the government search of that

home, even though he had no ownership interest in the premises

We have since held in both Gonzales and Powers that a possessory

interest in either the premises searched or the propertv seized is

sufficient to establish standing. However, we have never modified

nor reversed our position in Isom

Other states which have held that a possessory interest in the

items seized is sufficient to establish standing to challenge the

legality of a search or the property's seizure, have adopted

automatic standing rules on independent state grounds where the

defendant is charged with unlawfully possessing that item.

For example, in State v. Alston (N.J. 1981), 440 A.2d 1311, the

defendants were passengers in a vehicle from which weapons were

seized during a search of the vehicle. They were later charged

with unlawful possession of the weapons. Pursuant to the

defendants' motion, the evidence was suppressed by the trial court,

based on the illegality of the police search. On appeal, the state

contended that the defendant passengers had no standing to

challenge the legality of the search of the vehicle, despite their

possessory interest in the weapons which had been seized.

After reviewing the U.S. Supreme Court's decisions on

standing, including Sulvtrcci, that court noted an inconsistency in the

federal law which appeared to allow prosecutors to assert

contradictory positions:

[Tlhat the defendant possessed the contraband property

for the purposes of proving criminal liability, but that

he had insufficient possessory interest in the property

for the purposes of defending the legality of the search

and seizure.

Alston, 440 A.2d at 1317. The court pointed out that a basic

principle of American federalism confers on state courts the power

to afford citizens of each state greater protection against

unreasonable searches and seizures than may be required by the

Supreme Court ' s interpretation of the Fourth Amendment, and on that

basis, concluded that the Salvucci decision afforded inadequate

protection against unreasonable searches and seizures. Alston, 440

Finally, the New Jersey Supreme Court concluded that based on

its rule of standing which provided that "a criminal defendant is

entitled to bring a motion to suppress evidence obtained in an

unlawful search and seizure if he has a proprietary, possessory or

participatory interest in either the place searched or the nropertv

seized," it would retain the automatic standing rule where a

defendant is charged with an offense in which possession of the

seized evidence at the time of the contested search is an essential

element of guilt. Alston, 440 A.2d at 1320. It adopted reasoning

from former Justice Thurgood Marshall that

[tlhe automatic standing rule is a salutary one which

protects the rights of defendants and eliminates the

wasteful requirement of making a preliminary showing of

standing in pretrial proceedings involving possessory

offenses, where the charge itself alleges an interest

sufficient to support a Fourth Amendment claim.

Alston, 440 A.2d at 1320 (citing Salvucci, 448 U.S. at 97, 100 S. Ct.

at 2556, 65 L. Ed. 2d at 632 (Marshall, J., dissenting))

Other states have also adopted the rule of automatic standing

for crimes of possession. See State v. E'hite (Ariz. App. 1978), 574 P.2d

840; Slate v. Alosn ( N . H . l993), 623 A.2d 218

We agree with the reasoning in Alston. Based on independent

state grounds pursuant to Article 11, Section 11, of the Montana

Constitution, we hold that when the charge against the defendant

includes an allegation of a possessory interest in the property

which is seized, the defendant has standing to object to the

prosecutorial use of that evidence based on either the unlawful

search of the location where it was found, or its unlawful seizure.

Since Bullock was accused by the State of unlawfully

possessing the elk carcass which was found on Peterson's property,

we conclude, based on our prior decisions and the logical

application of those decisions as set forth above, that he had

standing to object to the State's search of Peterson's property and

seizure of that carcass.

ISSUE 3

Does Article 11, Section 11, of the Montana Constitution,

prohibit warrantless searches and seizures, under the circumstances

in this case, on private land that falls outside the curtilage of

a dwelling?

We review a district court's conclusions of law regarding a

motion to suppress to determine whether the district court's

interpretation of the law was correct. State v. Pastos (Mont. 1994),

887 P.2d 199, 201, 51 St. Rep. 1441, 1442. The defendants contend

that the elk discovered by the State pursuant to its warrantless

entry onto Peterson's property, and any further evidence which

resulted from the discovery of that carcass, including statements

made by both defendants, should be suppressed based upon the Fourth

Amendment to the United States Constitution, and Article 11,

Section 11, of the Montana Constitution, which guarantee the

defendants the right to be free from unlawful searches and

seizures. As evidence that the State's entry upon Peterson's land

and seizure of the elk carcass were unlawful, the defendants point

out that no search warrant had been issued, that permission had not

been given for Anderson and Dawson to enter Peterson's land, and

that the search which led to discovery of the elk was not made

pursuant to any statutory exception provided for game wardens at

§ 87-1-506(2), MCA. They contend that pursuant to State v. Osteen

(1985), 216 Mont. 258, 261, 700 P.2d 188, 191, and Statev. Cadson

(19821, 198 Mont. 113, 119, 644 P.2d 498, 501, the plain view

doctrine does not apply because the law enforcement officers were

not legally at the place where they first observed the elk carcass;

that pursuant to the criteria set forth in Unitedstates .' Dunn (1987),

480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed 2d 326, 334-35,

the carcass was located in the curtilage of Peterson's home, rather

than in the "open field" and that at that location defendants had

a subjective expectation of privacy which should be recognized as

reasonable by society.

The State responds that Anderson's presence on Peterson's

property, and his observation of and subsequent seizure of

contraband at that location, was constitutionally permissible

pursuant to the "open fields" doctrine recognized by the U.S.

Supreme Court in Oliverv. 1JnitedStates (1984), 466 U.S. 170, 104 S. Ct.

1735, 80 L. Ed. 2d 214, and previously recognized by this Court in

State v. Charvat (1978), 175 Mont. 267, 573 P.2d 660, and subsequent

cases. The State also contends that the location of the elk

carcass did not meet the criteria for constitutionally protected

curtilage set forth in D m n , and that pursuant to § 87-1-502(6),

MCA, Anderson had the authority to inspect the carcass at any

location other than a residence or dwelling.

The Fourth Amendment to the United States Constitution

provides that:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

Article 11, Section 11, of the Montana Constitution, provides

similarly that:

The people shall be secure in their persons, papers,

homes and effects from unreasonable searches and

seizures. No warrant to search any place, or seize any

person or thing shall issue without describing the place

to be searched or the person or thing to be seized, or

without probable cause, supported by oath or affirmation

reduced to writing.

Pursuant to these provisions, searches conducted without

warrants are presumed to be unreasonable subject to a few

delineated exceptions. Osteen, 700 P.2d at 191 (citing Kalz v. United

States (1367), 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d

576, 585) . The State contends that a search of open fields was

either never intended for protection pursuant to these amendments,

or is an exception to the warrant requirement, depending on which

precedent is considered.

Because of what appear to be seeming inconsistencies in the

decisions of the United State Supreme Court, our prior willingness

to apply those decisions under circumstances which were different

than those presented in this case, and contrary decisions in other

jurisdictions based on the same high regard for privacy that

prevails in this State, we deem it appropriate to trace the origins

of the "open fields" doctrine, and reconsider its applicability to

Article 11, Section 11, of the Montana Constitution.

The open fields doctrine was first established in Hesterv. United

States (1924), 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898. In Hester,

the Court held that the Fourth Amendment protects "persons, houses,

papers, and effects," and is not extended to the open fields.

Hester, 265 U.S. at 59 (citing 4 B1. Comm. 223, 225, 226). Shortly

thereafter, the Supreme Court clarified that the Fourth Amendment

provides protection from invasion of one's house or curtilage.

Olmsreadv. UnitedStates (19271, 277 U.S. 438, 466, 48 S. Ct. 564, 568, 72

L. Ed 944, 951.

Subsequently, however, that Court recognized that the Fourth

Amendment protects people--not places--fromunreasonable searches.

Katz, 389 U.S. 347.' In Kutz, the Court stated that the Fourth

Amendment protects individual privacy against certain kinds of

government intrusion, but its protections go further and often do

not relate to privacy. Katz, 389 U.S at 350. A person's right to

privacy, or right to be let alone, is largely left to the law of

the states. Katz, 389 U.S. at 350-51. What a person knowingly

exposes to the public is not protected, but what an individual

seeks to preserve as private, even in an area accessible to the

public, may be constitutionally protected. Katz, 389 U.S. at 351.

Finally, the Court discredited the previous notion that property

interests control the government ' s right to search and seize. Katz,

389 U.S. at 353. However, the two-part test that this Court has

followed since Charvat to determine whether a search is unlawful was

set forth in Justice Harlan's concurring opinion in Katz, 389 U.S.

at 361 (Harlan, J., concurring). That test requires that (1) a

person have an actual expectation of privacy; and (2) the

expectation must be one society is willing to recognize as

reasonable.

In a seeming return to concepts discredited in Katz, the Court

,

reaffirmed notions grounded in Nester in Oliver v. United Stales (1984) 466

U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214. Oliver was based on two

I

Commentators have suggested that the Fourth Amendment

protects people and places. See Elison and NettikSimmons, R g t of

ih

Privacy, 18 Mont. L . Rev. 1, 5, 24 (1987).

similar fact patterns where law enforcement officials ignored "No

Trespassing" signs and fences, entered private property, and

observed illegal drug activity. The Court held that the specific

language of the Fourth Amendment does not include open fields.

Oliver, 466 U.S. at 177. The amendment's protection extends only to

the curtilage area immediately surrounding one's home. Oliser, 466

U.S. at 178. Following Oliver, it appears that if an area is not

curtilage, it is an open field unprotected by the Fourth Amendment.

Despite the Court's intent to eliminate case-by-case determina-

tions, the Oliver Court did not discuss how courts were to determine

the distinction between curtilage and open fields.

Based on this omission, the Supreme Court suggested a

four-part test for determining the extent of the curtilage area in

Dunn, 480 U.S. at 301-03. In Dunn, officers who did not initially

obtain a warrant, crossed a perimeter fence, entered a ranch, and

observed a drug operation through an open barn door. The Court

concluded that the barn and the area surrounding the barn were

beyond the curtilage and were not protected by the Fourth

Amendment. Dunn, 480 U.S. at 301.

The Court stated that curtilage questions should be resolved

with particular reference to the following factors:

[Tlhe proximity of the area claimed to be curtilage to

the home, whether the area is included within an

enclosure surrounding the home, the nature of the uses to

which the area is put, and the steps taken by the

resident to protect the area from observation by people

passing by.

Dunn, 480 U.S. at 301 (citing Californiav. Ciraolo, 476 U.S. 207, 221, 106

S. Ct. 1809, 1817, 90 L. Ed. 2d 210, 222 (Powell,J., dissenting)).

Each party in this case contends that the Dunn factors weigh in his

or its favor. However, based on this State's Constitution, and its

expressed regard for individual privacy, we decline to follow the

U.S. Supreme Court's distinction between curtilage and open fields,

and therefore, will not consider the applicability of the Dzmn

criteria to this case.

Although we have not previously followed Dunn, we have, in the

past, applied the "open fields" doctrine in cases which are

factually distinguishable from this case.

Before Montana's Constitution was amended in 1972, the

doctrine was discussed in several cases. We initially followed

Hesler and held that the constitutional protections of Montana's

analogous provision to the Fourth Amendment do not extend to an

open field. Statev.Arnold (1929), 84 Mont. 348, 275 P. 757; Statev.Ladue

(19251, 73 Mont. 535, 237 P. 495. Relying on Arnold and Ladue, we

held that open pastures and farm lands are not protected by the

Fourth Amendment, State v. Perkins (l969), 153 Mont. 361, 457 P.2d 465,

or Montana s analogous constitutional provision, Slate v. Johnson

(1967), 149 Mont. 173, 424 P.2d 728.

Following the amendment of Montana's Constitution in 1972, and

after Katz, this Court began to analyze the open fields doctrine

differently. In State v. Charvat (l978), 175 Mont. 267, 573 P.2d 660,

relying on Nester, this Court held that neither the Fourth Amendment,

nor Article 11, Section 11, of the Montana Constitution, extended

protection to open fields. Churvaf, 573 P.2d at 661. However,

because Katz was decided after Hester, we stated that the

determination of whether an intrusion was unreasonable depended

upon whether one had an actual (subjective) expectation of privacy

that society would recognize as reasonable. Churvut, 573 P.2d at

662. This Court, like the Court in Kalz, cited authority for the

proposition that the focus of search and seizure analysis is no

longer on common law property concepts. Charvat, 573 P.2d at 662

(citing Wattenburgv. LC'nitedStates (9th Cir. 1968), 388 F.2d 853).

In Statev. Dess (19821, 201 Mont. 456, 464, 655 P.2d 149, 153, we

held that the "reasonableness of his expectation of privacy turned

on the defendant's right to exclude others from the premises."

Because the defendant admitted he had a diminished expectation of

privacy in a public campground, and because of other facts, we held

that the defendant did not have a reasonable expectation of privacy

in the area searched. Dess, 655 P.2d at 154.

In 1983, we addressed an appeal from the denial of a motion to

suppress evidence seized from an area of the defendant's fields.

,

Statev. Bennett (1983) 205 Mont. 117, 666 P.2d 747. In Bennetl, a deputy

sheriff following an anonymous tip observed marijuana plants

growing in the defendant's garden through a 60 power scope from a

nearby road. We concluded that the area surrounding the fenced

portion of the property was open field, and that the use of the

spotting scope did not violate the defendant's reasonable

expectation of privacy in an area that could be observed from a

public road. Bennett, 666 P.2d at 749 (citing Hester, 265 U.S. 57) .

"Where no reasonable expectation of privacy exists, there is

neither a 'search' nor a 'seizure' within the contemplation of the

Fourth Amendment of the United States Constitution or Article 11,

Section 11 of the Montana Constitution." Bennett, 666 P.2d at 749.

We concluded that the defendant voluntarily exposed the marijuana

to the public by growing it in a garden near a county road, and

therefore, that even if the defendant had a subjective expectation

of privacy, it was not one society would recognize as reasonable.

Bennett, 666 P.2d at 749.

Finally, in another case involving a marijuana grow operation,

we held that the defendant did not have a legitimate expectation of

privacy. In Statex, Sorensen (1990), 243 Mont. 321, 792 P.2d 363, law

enforcement officials, who were acting on a tip that the defendant

was growing marijuana on forest service land and storing it on his

property, began observing the defendant's property. The officers

later obtained a warrant and seized evidence of the marijuana

operation. The defendant contended that Article 11, Section 10, of

the Montana Constitution, protected him from trespass by law

enforcement, and he contended they must have trespassed, or they

could not have described his buildings in such detail in the search

warrant.

24

We acknowledged that Montana's constitutional right of privacy

is broader than the right of privacy under the Federal

Constitution. Sorensen, 792 P.2d at 366 (citing Statev.Sierra (1985),

214 Mont. 472, 692 P.2d 12731. However, we concluded that "[tlhe

"open fields" doctrine, providing that the right of privacy in

one's home does not extend to open fields within the view of the

public, has been recognized under Montana's right of privacy."

Sorensen, 792 P.2d at 366 (citing Charvai, 573 P.2d at 661).2 We held

that the defendant did not have a legitimate expectation of privacy

that would prevent law enforcement officers from observing

buildings located on his unfenced land. Sorensen, 792 P.2d at 366.

As these developments illustrate, we have followed the principles

established in Katz, but have applied the "open fields" doctrine to

our consideration of whether a person's expectation of privacy is

one that society would consider reasonable. However, we have not

had occasion to consider reasonableness under precisely the

circumstances presented in this case.

Nor have we discussed the distinction between curtilage and

open fields, or the impact of Dunn on Montana's constitutional

guarantee of freedom from unreasonable searches. Therefore, we

look to other jurisdictions which have addressed the open fields

doctrine as applied to state constitutional provisions similar to

ours under circumstances similar to those presented in this case.

This citation to Charvat is inaccurate because Charvai discussed

Article 11, Section 11, not Section 10.

In 1988, the Oregon Supreme Court held that that state's

nearly identical right to be free from unreasonable searches and

seizures provided broader privacy protection in open fields than

the United States Supreme Court had provided pursuant to the Fourth

Amendment. Stotev.Dixson/Digby (Or. 1988), 766 P.2d 1015.

In Dixson, sheriff's deputies received information that

marijuana was growing on heavily forested land owned by a lumber

company. After an officer flew over the land and observed

marijuana, officers were granted permission to drive on the land.

As they approached the land, they came to an impassable dirt

logging road which was on property being purchased by the Dixsons,

who resided on the land. The officers walked on, passed several

"no hunting" signs, pushed some brush aside, and observed marijuana

plants located on the Dixsons' property. Dixson, 766 P.2d at 1016.

The next day, officers returned and discovered Lorin Dixson

and Jeff Digby near the plants, arrested both of them, and seized

the plants. The defendants moved to suppress the evidence based on

the Fourth Amendment and the Oregon Constitution. The trial court

denied the motion but was reversed by the Court of Appeals.

On appeal, that court was urged by the state to adopt the

"open fields" exception to Oregon's constitutional warrant

requirement based on the rationale in Oliver. However, that court,

based on the same constitutional language considered by the U.S.

Supreme Court in Oliver, declined to do so. It began its analysis

by pointing out that the term "open fields" is not precise. In

26

fact, it was applied in Olivev to lands which were "neither fields

nor, in any fair sense of the word, open; the open fields doctrine

denies Fourth Amendment protection to all undeveloped and

unoccupied land outside the curtilage of a residence." Dixson, 766

P.2d at 1020 (citing Oliver, 466 U.S. at 180 n.11). The court went

on to explain that neither is the common law concept of curtilage

applicable to constitutional analysis. It explained that:

The rationale underlying the curtilage concept as it

was used at common law--to provide a zone of protection

to sleeping residents from the "midnight terror" of

burglary--simply is not the same as the rationale

underlying Article I, section 9, or, for that matter, the

Fourth Amendment, each of which protects the privacy of

the individual from warrantless invasion and scrutiny by

the government and its minions. Reliance on the

common-law concept of curtilage to justify excluding land

outside the curtilage from the protections of either

constitutional provision is misplaced.

Dixson, 766 P.2d at 1023.

The Oregon court pointed out that that state's right to be

free from unreasonable searches and seizures was based not on a

person's "reasonable expectation of privacy'' but upon each

"individual's interest in freedom from scrutiny, i e . , his privacy."

Dixson, 766 P.2d at 1023.

The court next concluded that land owners who have, at some

expense, taken steps to exclude others from their property by use

of signs, fences, or other measures, have expressed an intention to

establish privacy which is protected under Oregon's constitutional

right to be free from unreasonable searches and seizures. For that

reason, the Oregon court established the following test to enable

police to determine whether an uninvited intrusion on private

property constitutes a search under that state's constitution which

requires a warrant:

An individual's privacy interest in land he or she has

left unimproved and unbounded is not sufficient to

trigger the protections of Article I, section 9. Thus,

it is not sufficient that the property in question is

privately owned, or that it is shielded from view by

vegetation or topographical barriers, because those

features do not necessarily indicate the owner's

intention that the property be kept private. A person

who wishes to preserve a constitutionally protected

privacy interest in land outside the curtilage must

manifest an intention to exclude the public by erecting

barriers to entry, such as fences, or by posting signs.

This rule will not unduly hamper law enforcement officers

in their attempts to curtail the manufacture of and

trafficking in illegal drugs, because it does not require

investigating officers to draw any deduction other than

that required of the general public: if land is fenced,

posted or otherwise closed off, one does not enter it

without permission or, in the officers' situation,

permission or a warrant.

Applying this rule, however, to the facts in that case, the

Oregon Court held that the search was not illegal

The Court of Appeals of New York has also refused to follow

the United States Supreme Court's distinction between curtilage and

an open field. People v. Scott (N.Y. 1992), 593 N.E.2d 1328

In Scott, police had information that the defendant was growing

marijuana on his property which consisted of 165 acres of rural,

undeveloped woodlands. In spite of the fact that the property was

conspicuously posted with no trespassing signs, and without the

defendant's permission, police entered upon the property where they

personally observed plants. Based on those observations, and

testimony of a private citizen, the police obtained a search

warrant, pursuant to which they found and recovered marijuana

plants beyond the curtilage of the residence which was located on

the property. The defendant moved to suppress that evidence.

However, based upon Oliver, New York's trial court and appellate

division denied that motion. On appeal, New York's highest court

was asked to decide whether it should follow Oliver and exclude open

fields from the protection of its state constitutional right to be

free from unreasonable searches and seizures. After thoughtful

consideration, it declined to apply Oliver in the State of New York

for the following reasons: (1) the conclusion that the Fourth

Amendment does not apply to land was "contrary to the basic concept

of post-Kazz decisions that the amendment protects a person's

privacy, not places"; ( 2 ) the constitutional history relied upon in

Oliveeu was inapplicable to the comparable provision in New York's

Constitution; (3) its effect was incompatible with Justice

Brandeis's Olmstead dissent declaring the "right to be let alone--the

most comprehensive of rights and the right most valued by civilized

men"; (4) that state's private property laws indicated that the

interest in privacy on land beyond the curtilage was one that New

York society was prepared to recognize as reasonable; and

(5) giving state agents unbridled license to roam freely on private

land without permission was repugnant to basic notions of fairness

in that state's criminal law. Scott, 593 N.E.2d at 1334-37. For

these reasons, the New York Court held that:

[Wlhere landowners fence or post "No Trespassing" signs

on their private property or, by some other means,

indicate unmistakably that entry is not permitted, the

expectation that their privacy rights will be respected

and that they will be free from unwanted intrusions is

reasonable.

Therefore, that court held that the warrantless entry by

police on the defendant's land violated that state's constitutional

right to be free from unreasonable searches and seizures

Like the Dixson court, the Scott court recognized that the Fourth

Amendment was not literally interpreted in Katz. Neither a

telephone booth, nor a conversation therein, can be described as a

person, house, paper, or effect. Scott, 593 N.E.2d at 1334-35.

Moreover, the Court had extended protection beyond the Fourth

Amendment's literal language, e.g.,business premises are protected

but not included in the literal language. Scott, 593 N.E.2d at 1335

(citing Mclcrhallv. bar low!^, Inc. (1977), 436 U.S. 307, 311, 98 S. Ct.

1816, 1819, 56 L. Ed. 2d 305, 310; G.M.

Leasing COT. V. CTniledStates

(l976), 429 U.S. 338, 358-59, 97 S. Ct. 619, 631, 50 L. Ed. 2d 530,

547). In its final analysis, however, the court found those

contradictions irrelevant because it was concerned with "a

provision in a different Constitution with its own unique history."

Scott, 593 N.E.2d at 1335.

That court refused, as this Court has in the past (seestate v.

Sawyer (l977), 174 Mont. 512, 571 P.2d ll3), to march " [llockstep"

with the United States Supreme Court's interpretation of similar

provisions in the federal constitution. Instead, it agreed, as we

do, with the observation by former Justice William Brennan that

"state courts cannot rest when they have afforded their citizens

the full protection of the federal Constitution" and without "the

independent protective force of state law . . . the full

realization of our liberties cannot be guaranteed." Scott, 593

N . E .2 at 1338 ( citing Brennan , State Constitutions and the Protection of Individual

d

Rights, 90 Harv. L . Rev. 489, 491).

Finally, and most recently, a Washington Court of Appeals

found additional protection based on its state constitution. State

v. Johnson, (1994 Wash. Ct. App. Div. 21, 879 P.2d 984.

In ,Johnson, federal and state officers, acting on information

they received that Johnson was growing marijuana on his property,

drove to his property and walked to the edge, but were unable to

view any buildings. Johnson's property was bounded with a fence

and a closed chain link gate and was posted with "Private Property"

and "No Trespassing" signs on trees nearby. Aerial photographs

were taken and DEA officers returned a couple days later at about

1:00 a.m., found the gate unlocked, and proceeded down a dirt road

toward Johnson's property. They observed a barn, smelled marijuana

growing, used a thermal imaging device, and discovered a grow

operation. The officers later received and executed a warrant

based partly on these observations. Johnson, 879 P.2d at 987.

Johnson's motion to suppress was denied, and on appeal he argued

that the DEA activity violated the Washington Constitution.

The court first stated that the Washington Constitution

provides more protection than the Fourth Amendment, partly because

Washington has a strong tradition of protecting private property

from unwanted intrusions and recognized criminal trespass for

similar conduct. Johnson, 879 P.2d at 990.

The court acknowledged that the officers did not enter the

curtilage, but that did not end its analysis under the Washington

Constitution. Neither the open fields doctrine, nor the reasonable

expectation test, was dispositive, but both were factors used to

determine if the entry unconstitutionally intruded into a person's

private affairs. That court concluded that its Constitution "does

not foreclose a person's ability to protect his or her private

affairs in an open field." Johnson, 879 P.2d at 993.

It held that fields that are fenced and posted with no

trespassing signs are protected, and therefore, that the agents'

entry was an unreasonable intrusion into Johnson's private affairs.

Johnson, 879 P.2d at 993.

Like our sister states, Montana has a strong tradition of

respect for the right to individual privacy.

The Montana Constitution also provides that the

people shall be free from unreasonable searches and

seizures. Mont. Const. Art. 11, § 11. Although the

language of this provision is nearly identical to that

contained in the Fourth Amendment to the United States

Constitution, we recognize that such a provision in the

Montana Constitution may be interpreted so as to provide

a greater amount of rights than that contained in the

Federal Constitution. See, Slate v. .Johnson (19861, 12211

Mont. 1503, 5131, 719 P.2d 1248, 1254-55; and Butte

Communi@ Union v. Lewis (1986), 12191 Mont. [426, 4331 , 712

P.2d 1309, 1313. Additionally, the Montana Constitution

provides that the right of individual privacy shall not

be infringed without the showing of a compelling state

interest. Mont. Const. Art. 11, § 10. There is no

similar textual language in the United States

Constitution and we have therefore recognized that this

section grants rights beyond that inferred from the

United States Constitution. See generally, iUontana Human

Rights Division v. City of Billings ( 1982) , 199 Mont . 434 , 649 P . 2d

1283. Because Montana's Constitutional protections have

an existence which is separate from the Federal

Constitutional protections it is necessary to offer an

independent analysis of the privacy and search and

seizure provisions of the Montana Constitution.

Statev. Brown (l988), 232 Mont. 1, 9-10, 755 P.2d 1364, 1370

We conclude, based on this State's strong tradition of respect

for individual privacy as reflected in our own unique Constitution,

that the preceding discussions from our sister states are

persuasive.

States are free to grant citizens greater protections based on

state constitutional provisions than the United States Supreme

Court divines from the United States Constitution. State v. Suvtyer

(1977), 174 Mont. 512, 515, 571 P.2d 1131, 1133 (overruled on other

grounds by Slaiev.Long (1985), 216 Mont. 65, 700 P.2d 153). We have

chosen not to "march lock-step" with the United States Supreme

Coilrt , even when applying nearly identical language. State v. .Johnson

(1986), 221 Mont. 503, 512, 719 P.2d 1248, 1254. In addition, we

have held that Montana's unique constitutional language affords

citizens a greater right to privacy, and therefore, broader

protection than the Fourth Amendment in cases involving searches

of, or seizures from, private property. Smvyer, 571 P.2d at 1133.

As the New York Court of Appeals stated in Scott, the rule that

an individual may never have an expectation of privacy in open

fields would be repugnant to our State's explicit recognition of

privacy as a fundamental right which will not be violated absent a

compelling state interest. Mont. Const. art. 11, 5 10. Likewise,

as the Washington Court stated in Johnson, the fact that the officers

did not enter the curtilage does not end our analysis based on

Article 11, Section 11. In this case, we decline to apply the

United States Supreme Court's Oliver decision to Article 11,

Section 11, of the Montana Constitution.

We conclude that in Montana a person may have an expectation

of privacy in an area of land that is beyond the curtilage which

the society of this State is willing to recognize as reasonable,

and that where that expectation is evidenced by fencing, "No

Trespassing," or similar signs, or "by some other means [which]

indicatefs] unmistakably that entry is not permitted" (Scott, 593

N.E.2d at 1338), entry by law enforcement officers requires

permission or a warrant. As in our prior decisions, however, this

requirement does not apply to observations of private land from

public property. To the extent that our prior decisions in Chawat,

Dess, Bennett, and Sorensen are inconsistent with this holding, they are

overruled.

We next discuss whether the State's entry onto Peterson's

property without a warrant, and without permission, was prohibited

under the circumstances in this case.

Peterson's cabin was initially built near a public road.

However, due to vandalism, he moved his cabin away from the road to

where it is barely visible from the road. After the move,

Peterson's cabin was located in a forested area approximately 334

feet down a private road. A fence separated Peterson's property

from the public road and a large metal gate controlled access to

his property. Although the gate was open on this occasion, trees

on either side of the gate were posted with "No Trespassing" signs.

It was stipulated that people in the past, including members of the

Jefferson County Sheriff's Department, requested permission to

enter his land.

Peterson took numerous precautions to ensure that others would

not enter his property without permission. We conclude that

Peterson's expectation of privacy was reasonable. Therefore, under

these circumstances, we hold that the entry onto Peterson's

property and observation of the elk carcass, which could not have

otherwise been observed, was an unreasonable search in violation of

Article 11, Section 11, of the Montana Constitution. Evidence that

was gathered thereafter as a result of the unlawful search was

inadmissible by virtue of the exclusionary rule. See Wong Sun v. L'nited

States (19631, 371 U.S. 471, 486-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d

441, 455.

The State contends that Peterson allowed Anderson to inspect

the elk and offered to take the officers to the kill site, and

therefore, that the evidence was obtained from consensual activity

which does not violate either the Fourth Amendment or its Montana

counterpart. Even if Peterson consented, it was after the officers

wrongfully entered his property and saw the elk. Consequently, it

flowed from the unlawful intrusion and cannot be used to justify

it.

We affirm the District Court's denial of the defendants'

motion to dismiss. However, we hold that the District Court erred

when it failed to grant the defendants' motion to suppress evidence

obtained after the officers entered Peterson's property without

permission or a warrant and observed the elk carcass. Because we

base our decision on this issue, we do not find it necessary to

address the other issues raised on appeal.

We concur: