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Recent Criminal
Law Developments


In State vs. Goetz and State vs. Hamper, 2008 MT 296, the Montana Supreme Court held that it was a violation of Article II, sections 10 and 11 of the Montana State Constitution for the State to conduct warrantless electronic monitoring and recording of one-on-one conversations with confidential informants, notwithstanding the confidential informant's consent to the monitoring.  In other words, police can no longer wire up a confidential informant and record a one-on-one drug buy and use that recording as evidence in most cases.  The Court had previously held in State vs. Brown, 232 Mont. 1, 755 P.2d 1364 (1988) that electronic monitoring of conversations between two people with the consent of one of them did not constitute a search subject to the search warrant requirement.  Goetz and Hamper, specifically overrule Brown.  These cases were decided strictly under Article II, sections 10 and 11 of the Montana Constitution since the Federal Constitution does not prohibit electronic monitoring of face-to-face conversations with the consent of one party.  See United States vs. White, 401 U.S. 745, 91 Sup. Ct. 1122 (1971).
         It is also important to note that Goetz and Hamper only apply where the conversation takes place where the target has a reasonable expectation of privacy.  The Court reasons that without the objectively reasonable expectation of privacy, a "search" does not occur under the Montana Constitution.  Therefore, if the place where the conversation takes place does not have an expectation of privacy, then such a surreptitious recording will be allowed into evidence.  The Court then goes on to discuss and define the concept of "reasonable expectation of privacy."  The Court quotes from State vs. Scheetz, 286 Mont. @ 48, 950 P.2d @ 726 noting "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."  In these cases, the Court found that Goetz and Hamper had an expectation of privacy in their homes and their vehicles. 
         As a side note, given the Justices' differing opinions with regard to homes and vehicles and the decision in general, it will be interesting to see how long this holding remains the law in Montana.

 

         On April 21, 2009 the United States Supreme Court decided the case of Arizona vs. Gant, No. 07-542.  The Court held that police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe that the vehicle contains evidence of the offense of the arrest.  When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless "police obtain a warrant or show that another exception to the warrant requirement applies." 
         In this case Gant was arrested for driving on a suspended license, hand cuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket in the car. Gant finally recognizes the absurdity that a person who has been searched, handcuffed, and placed in the back of a patrol car would be able to magically leap from his confines, back into his automobile several yards away, retrieve a weapon, and attack the officers.
         Probably the most intelligent and well-reasoned analysis of the search incident to arrest doctrine was laid out in Justice Scalia's concurring opinion.  He stated "When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of insuring their safety - and a means that is virtually always employed; ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him and placing him in the squad car."  Justice Scalia further stated that the risk to an officer being shot when they are pulled over is at its height at the time of the initial pullover and "it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car."  Also, interestingly Scalia noted that there has never been a single instance in which a formally restrained arrestee has ever escaped to retrieve a weapon from his own vehicle.

 

         The 2009 Montana Legislature passed a couple of interesting bills that were signed by the Governor, which affect the criminal law. 
         House Bill 534 now requires electronic recording of custodial interrogations in felony cases and in youth cases involving an offense that would be a felony if committed by an adult.  The Act notes that the main purposes for requiring recorded interrogations (as has been done in the rest of the civilized world for many decades) are:

    1. To provide the best evidence of the communications that occurred during an interrogation;
    2. To prevent disputes about a police officer's conduct or treatment of a suspect during the course of an interrogation;
    3. To prevent a defendant from lying about the accounts of events originally provided to law enforcement by the
      defendant [of course]; and
    4. To save judges and jurors time.

         As with any legislation that is a compromise, the exceptions to House Bill 534 almost swallow the rule.  Section 4 is entitled Exceptions to Custodial Recording Requirements and lists many "outs" for a court to find that the evidence pertaining to an interrogation, [i.e. confessions from the defendant], are admissible without having been recorded.  The exceptions include:

    1. Statements that have been made voluntarily and are reliable;
    2. Statements made at the booking process;
    3. The failure of electronic recording equipment ("but Judge, the recorder broke").
    4. Exigent circumstances;
    5. Etcetera, etcetera, etcetera.

Anyway, it is a start and the burden is on the State to show an exception by a preponderance of the evidence.

 

         Another interesting bill that has been signed by the Governor is House Bill 228 dealing with the right of self-defense and the right to bear arms.  Essentially this new law codifies really what we have all been doing in self-defense cases anyway, but it is nice to have the force of the statute when arguing for "no duty to flee" instructions to the Judge.  Essentially, this legislation does several things:

    1. It requires law enforcement to investigate and disclose all evidence that might support a defense of justifiable use of force.
    2. It makes defense of an occupied structure more clear and outlines the use of deadly force against the person attempting to unlawfully enter an occupied structure.
    3. It allows any person to openly carry a weapon any place that it is not prohibited by law, and most importantly allows a person to draw and present a weapon to an alleged aggressor if the person reasonably believes that the other person is threatening him with bodily harm.  Note that it is not serious bodily harm, but only bodily harm which justifies the drawing and presenting of a weapon.

In this commentator's opinion, this Bill merely codifies in one section what has been the law in Montana for many years.

 

         The burglary statute was amended in House Bill 574 in a manner that allows prosecution for felony burglary instead of misdemeanor criminal trespass in a whole category of cases.  Under the old burglary statute, a person committed the offense of burglary when he knowingly entered or remained unlawfully in an occupied structure, "with the purpose to commit an offense therein."  Under the new statute, a person commits the offense of burglary if he enters or remains unlawfully in an occupied structure and commits any offense within that structure.  For example, a guy walks in a residential home through the unlocked back door just to get out of the freezing cold.  While he is in the house, he eats an orange from the kitchen table.  Under the old law, he would have been guilty of misdemeanor trespass and perhaps misdemeanor theft for eating the orange.  Under this revised statute he would be clearly guilty of felony burglary even though he did not enter the home with the intent to "steal" the orange.  Somewhere a defendant must have been acquitted of burglary because he did not have the intent to commit an offense when he entered unlawfully an occupied structure, and it so shocked the conscience of Representative Vincent that he felt compelled to help prosecutors all over the State of Montana by lowering the bar in burglary cases.

 

         Last but not least, score one for the good guys.  In Senate Bill 476 introduced by Senator Jim Shockley, the threshold for felony theft was raised from $1,000.00 to $1,500.00.  How long was it a grand? -- twenty years maybe?

 

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