eCases

(1988), the electronic monitoring of a conversation between two people, with the consent
of one of them, does not constitute a search subject to the search warrant requirement.
¶12    The District Court recognized the conflict between Solis and Brown, and noted our
own observation, in State v. Hardaway,

2001 MT 252

, ¶ 51,

307 Mont. 139

, ¶ 51,

36 P.3d 900

, ¶ 51, of jurisprudential inconsistencies in privacy law cases from the mid-1980s
through the early 1990s. Determining stare decisis required the application of Brown, the
6
District Court denied the motions to suppress. It concluded the Defendants did not have a
reasonable expectation of privacy in their conversations with the confidential informants
and, thus, the electronic monitoring of the conversations by use of body wire transmitting
devices did not violate the Defendants’ rights of privacy or to be free from unreasonable
searches and seizures. The Defendants assert legal error.
¶13    The Fourth Amendment to the United States Constitution and Article II, Section
11 of the Montana Constitution protect citizens against unreasonable searches and
seizures. The Defendants do not dispute that, pursuant to United States Supreme Court
jurisprudence, warrantless electronic monitoring of face-to-face conversations, with the
consent of one party to the conversation, does not constitute a search and, therefore, does
not violate the Fourth Amendment. See e.g. United States v. White,

401 U.S. 745

91 S. Ct. 1122

 (1971).     They assert, however, that Article II, Sections 10 and 11 of the
Montana Constitution afford citizens a greater right to privacy which, in turn, provides
broader protection than the Fourth Amendment in situations involving searches and
seizures occurring in private settings.
¶14    Article II, Section 10 of the Montana Constitution provides that “[t]he 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.” Article II, Section 11 of
the Montana Constitution provides that
[t]he 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.
7
We address Article II, Section 10 in conjunction with Article II, Section 11 in analyzing
and resolving a search or seizure issue that specifically implicates the right to privacy.
See e.g. Hardaway, ¶ 32; State v. Siegal,

281 Mont. 250

, 264-65,

934 P.2d 176

, 184-85
(1997) (overruled in part in State v. Kuneff,

1998 MT 287

, ¶ 19,

291 Mont. 474

, ¶ 19,

970 P.2d 556

, ¶ 19). Furthermore, “[i]n light of the constitutional right to privacy to which
Montanans are entitled, we have held that the range of warrantless searches which may
be lawfully conducted under the Montana Constitution is narrower than the
corresponding range of searches that may be lawfully conducted pursuant to the federal
Fourth Amendment.” Hardaway, ¶ 35.
I. Solis and Brown
¶15 Given the parties’ and the District Court’s understandable reliance in this case on
early Montana privacy and search and seizure jurisprudence as set forth in Solis and
Brown, we begin with a discussion of those cases. In Solis, law enforcement employed
an undercover officer to act as a pawnshop proprietor and, with the officer’s consent,
videotaped certain events in the pawnshop. On numerous occasions, Solis was
videotaped selling merchandise—some of which apparently was stolen—to the
undercover officer. The State charged Solis with theft and intended to rely at trial on the
videotapes and testimony from the officers running the taping machine rather than any
testimony from the undercover officer who consented to the videotaping. Solis, 214
Mont. at 312-13, 693 P.2d at 519.
8
¶16 On appeal from the trial court’s suppression of the videotapes and testimony, we
addressed whether the State violated Solis’s right to privacy under Article II, Section 10
of the Montana Constitution. First, we set forth the test for determining whether an
individual has a constitutionally protected right of privacy as (1) does the individual have
an actual or subjective expectation of privacy? and, if so, (2) is that expectation of
privacy one which society is willing to view as reasonable? Solis, 214 Mont. at 314, 693
P.2d at 520 (citing Missoulian v. Board of Regents of Higher Educ.,

207 Mont. 513

, 522,

675 P.2d 962

, 967 (1984)). We concluded the defendant exhibited an actual expectation
of privacy by holding his conversations with the undercover officer in a small, enclosed
office within the pawnshop with only a personal friend of the defendant present, and this
expectation of privacy was reasonable because there were no areas from which other
individuals could have overheard the conversations. Solis, 214 Mont. at 314, 693 P.2d at
520. On the privacy versus electronic monitoring issue, we held that “in face-to-face
encounters in a private setting, there is a reasonable expectation that hidden monitoring is
not taking place.” Solis, 214 Mont. at 318, 693 P.2d at 522.
¶17 We next proceeded to the question of whether a compelling state interest justified
infringing on Solis’s right under Article II, Section 10 of the Montana Constitution. We
determined that a compelling state interest exists where the state is enforcing its criminal
laws for the benefit and protection of its citizens, especially under the Solis circumstances
where the suspect had engaged in repeated activity thought to be criminal. Even when a
compelling interest in invading an individual’s privacy existed, however, we required that
the procedural safeguards attached to the constitutional right to be free from unreasonable
9
searches and seizures must first be met. In other words, “[t]he State was required to show
probable cause to support the issuance of a search warrant.” Solis, 214 Mont. at 318-19,
693 P.2d at 522. The trial court having found no exigent circumstances precluding law
enforcement from a reasonable opportunity to seek a search warrant, we held that the
warrantless monitoring and recording of the defendant’s conversations with the
undercover officer violated his right to be free from unreasonable searches. Solis, 214
Mont. at 319-20, 693 P.2d at 523.
¶18 Solis set forth an in-depth discussion and analysis of the right to privacy
guaranteed by the Montana Constitution. However, only two Justices concurred in the
holding based on application of the Montana Constitution. Three additional Justices
concurred in the result of the decision, but relied on Katz v. United States,

389 U.S. 347

88 S. Ct. 507

 (1967), and other federal case law to determine that an unreasonable
warrantless search occurred which was not justified by any exception to the warrant
requirement. Solis, 214 Mont. at 320, 693 P.2d at 523 (Sheehy & Weber, JJ., & Haswell,
C.J., concurring). Consequently, Solis is not controlling precedent regarding application
of Article II, Sections 10 and 11 of the Montana Constitution to the substantially similar
circumstances of the present case.
¶19    The Court decided Brown in 1988, less than four years after Solis. In that case,
law enforcement monitored and recorded three conversations between a suspect and an
undercover police officer via a body wire transmitting device attached to the officer. The
conversations took place in a vehicle in a parking lot, over the telephone and in a motel
room rented by the undercover officer, and all related to arranging and completing a
10
single transaction for the sale of marijuana. Upon being charged with felony criminal
sale of dangerous drugs, the defendant moved to dismiss the charge, arguing in part that
the recording of her conversations without her knowledge was illegal. The trial court
denied the motion to dismiss and the defendant appealed. Brown, 232 Mont. at 3-4,

.
¶20   In addressing the defendant’s face-to-face conversations in the vehicle and motel
room, the Court noted the United States Supreme Court’s holding in White that
warrantless electronic monitoring of face-to-face conversations—with the consent of one
participant—does not violate the search and seizure provisions of the Fourth Amendment
to the United States Constitution. The Court also recognized, however, that Article II,
Section 10 of the Montana Constitution, in conjunction with Article II, Section 11, grants
rights beyond those in the federal constitution and requires an independent analysis of
privacy and search and seizure issues. Brown, 232 Mont. at 9-10,

755 P.2d at 1369-70

.
¶21   The Brown Court observed that some violation of a person’s reasonable
expectation of privacy must have occurred before the protections of Article II, Section 11
are implicated.   The Court then determined—with little analysis and no citation to
authority—that, while the defendant possessed a subjective expectation that her
conversations with the undercover officer would remain private, her expectation of
privacy was not reasonably justifiable and, consequently, no search or seizure occurred.
Brown, 232 Mont. at 10,

. The Court further determined that the
warrantless electronic monitoring and recording of a conversation with the consent of one
participant did not violate Article II, Section 10 of the Montana Constitution. Brown, 232
11
Mont. at 11,

. On that basis, the Court held that “warrantless consensual
electronic monitoring of face-to-face conversations by the use of a body wire transmitting
device, performed by law enforcement officers while pursuing their official duties, does
not violate the right to be free of unreasonable searches and seizures nor the privacy
section of the Montana Constitution.” Brown, 232 Mont. at 8,

755 P.2d at 1369

. The
Court’s prior holding in Solis was neither acknowledged nor overruled.
¶22   When discussing why the warrantless consensual electronic monitoring and
recording of the conversation did not violate the defendant’s rights under the Montana
Constitution in Brown, the Court cited United States Supreme Court cases and one legal
commentator. Furthermore, while Brown did not expressly cite White, the concepts
contained in the discussion of the Montana Constitution in Brown appear to be taken
directly from the Supreme Court’s rationale in that case. See White,

401 U.S. at 749-54

91 S. Ct. at 1125-27

; Brown, 232 Mont. at 10-11,

755 P.2d at 1370-71

.               Thus,
notwithstanding our recognition in Brown that Article II, Sections 10 and 11 of the
Montana Constitution, taken together, grant rights beyond those contained in the federal
constitution, our resolution of that case merely paralleled federal jurisprudence on the
subject and failed to properly analyze the greater rights guaranteed by Montana’s
Constitution. Stated differently, having stated without equivocation that the Montana
Constitution expressly provides more privacy protection than that inferred from the
United States Constitution—with the corresponding obligation to provide an independent
analysis under the Montana Constitution—we failed to follow through. See Brown, 232
Mont. at 10-11,

755 P.2d at 1370-71

. Nor did we do so in the only two cases since 1988
12
in which we have cited Brown for its holding regarding the monitoring and recording of
face-to-face conversations. See State v. Belgarde,

244 Mont. 500

798 P.2d 539

 (1990)
and State v. Staat,

251 Mont. 1

822 P.2d 643

 (1991).
¶23    In more recent years, this Court has readily applied Article II, Section 10 in search
and seizure cases to protect the privacy interests of Montana citizens.          Indeed, in
Hardaway, ¶ 57, we noted our “consistent trend toward protecting the privacy interests of
our citizens[:]”
[I]n State v. Sawyer [

174 Mont. 512

571 P.2d 1131

 (1977)], this Court first
applied Article II, Section 10 to a search and seizure case and explicitly
stated that Section 10 provided greater individual privacy protection in such
cases than did the federal constitution. We restated this rule in [Solis] and
State v. Sierra, [

214 Mont. 472

692 P.2d 1273

 (1985)], among others.
During this same time, however, the Court ruled on numerous other search
and seizure cases and made no reference to Article II, Section 10
whatsoever. . . . Subsequently, from the mid-1980s through the early
1990s, the Court provided no greater protection for individual privacy in
search and seizure cases than parallel federal law provided . . . . However,
since City of Billings v. Whalen (1990),

242 Mont. 293

790 P.2d 471

, this
Court has given increased protection to the privacy rights of Montana
citizens, limiting the scope of search and seizure cases, and since State v.
Bullock [

272 Mont. 361

901 P.2d 61

 (1995)], the Court has applied Article
II, Section 10, emphasizing “privacy as a mechanism to support
interpretation of search and seizure cases.” . . . In the ensuing years, we
consistently analyzed search and seizure cases involving significant privacy
issues under both Sections 10 and 11 of Article II of the Montana
Constitution.
Hardaway, ¶ 51. In light of this “consistent trend” of protecting Montana citizens’
heightened privacy rights under our Constitution, the Hardaway Court overruled an
earlier case addressing the relevant issue on the basis that the rationale in the prior case
was premised exclusively on federal jurisprudence and failed to comport with current
13
search and seizure and right to privacy analyses under the Montana Constitution.
Hardaway, ¶¶ 55-57 (overruling State v. Ulrich,

187 Mont. 347

609 P.2d 1218

 (1980)).
¶24    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
¶25    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, ¶ 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
14
Constitution. State v. Hamilton,

2003 MT 71

, ¶ 17,

314 Mont. 507

, ¶ 17,

67 P.3d 871

, ¶
17 (citing Scheetz, 286 Mont. at 46,

950 P.2d at 725

).
¶26    Article II, Section 11 protects Montana citizens from unreasonable searches and
seizures. Similarly, the Article II, Section 10 right to privacy—even where established—
is not absolute, but may be infringed upon a showing of a compelling state interest to do
so. See State v. Nelson,

283 Mont. 231

, 243,

941 P.2d 441

, 449 (1997). However, even
upon a showing of a compelling state interest, “the State may not invade an individual’s
privacy unless the procedural safeguards attached to the right to be free from
unreasonable searches and seizures are met.” State v. Elison,

2000 MT 288

, ¶53,

302 Mont. 228

, ¶ 53,

14 P.3d 456

, ¶ 53.
¶27    We determine whether a state action constitutes an “unreasonable” or “unlawful”
search or seizure in violation of the Montana Constitution by analyzing three factors: 1)
whether the person challenging the state’s action has an actual subjective expectation of
privacy; 2) whether society is willing to recognize that subjective expectation as
objectively reasonable; and 3) the nature of the state’s intrusion. See e.g. State v. Hill,

2004 MT 184

, ¶ 24,

322 Mont. 165

, ¶ 24,

94 P.3d 752

, ¶ 24. The first two factors are
considered in determining whether a search or seizure occurred, thus triggering the
protections of Article II, Sections 10 and 11.           The third factor relates to the
reasonableness of the search or seizure under the circumstances. Under the third factor,
we determine whether the state action complained of violated the Article II, Section 10
and 11 protections because it was not justified by a compelling state interest or was
undertaken without procedural safeguards such as a properly issued search warrant or
15
other special circumstances. See e.g. State v. Tackitt,

2003 MT 81

, ¶ 23,

315 Mont. 59

, ¶
23,

67 P.3d 295

, ¶ 23; Scheetz, 286 Mont. at 50,

950 P.2d at 727

; State v. Smith,

2004 MT 234

, ¶¶ 12-13,

322 Mont. 466

, ¶¶ 12-13,

97 P.3d 567

, ¶¶ 12-13. We address these factors
in turn.
A. Did the Defendants Have an Actual Subjective Expectation of Privacy?
¶28    “[W]e recognize that naturally a person seeks to protect certain parts of his or her
privacy, and i t is those desires which are at the foundation for the constitutional
safeguards that exist to protect them.” Scheetz, 286 Mont. at 48,

.
Moreover, a person normally expects privacy free from governmental intrusion not
authorized by a warrant in her or his home. See State v. Graham,

2004 MT 385

, ¶ 21,

325 Mont. 110

, ¶ 21,

103 P.3d 1073

, ¶ 21 (citations omitted). Thus, while the home is
traditionally “the raison d’être for the constitutional protection[,]” “the right to be free
from unreasonable searches and seizures encompasses more than the home . . . .”
Graham, ¶ 22. In that regard, we observe again that Article II, Section 11 guarantees that
“[t]he people shall be secure in their persons, papers, homes and effects from
unreasonable searches and seizures.” (Emphasis added).
¶29    These fundamental principles clarify that we base our recognition of an actual
expectation of privacy on various factors. See Scheetz, 286 Mont. at 48,

.
“‘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.’” Scheetz, 286 Mont. at 49,

950 P.2d at 726-27

 (quoting
Bullock, 272 Mont. at 375,

901 P.2d at 70

). Indeed, in Montana,
16
when persons leave the privacy of their home and expose themselves and
their effects to the public and its independent powers of perception, it is
clear that they cannot expect to preserve the same degree of privacy for
themselves or their affairs as they could expect at home. However, when a
person takes precautions to place items behind or underneath seats, in
trunks or glove boxes, or uses other methods of ensuring that those items
may not be accessed and viewed without permission, there is no obvious
reason to believe that any privacy interest with regard to those items has
been surrendered simply because those items happen to be in an
automobile.
Elison, ¶ 51 (citation omitted). While Elison involved physical items stowed within a
vehicle, the same rationale applies to a conversation with another person in a vehicle
which cannot be overheard by the public outside the vehicle. Thus, where a person has
gone to considerable trouble to keep activities and property away from prying eyes, the
person evinces a subjective expectation of privacy in those activities and that property.
State v. 1993 Chevrolet Pickup,

2005 MT 180

, ¶ 12,

328 Mont. 10

, ¶ 12,

116 P.3d 800

, ¶
12. Accordingly, we determine whether a person has knowingly exposed something to
the public and, consequently, surrendered his or her privacy protections by looking at the
particular facts of the case. Scheetz, 286 Mont. at 49,

950 P.2d at 726-27

.
¶30    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
17
powers of perception.”        We conclude the Defendants exhibited actual subjective
expectations of privacy in the face-to-face conversations they held in private settings.
B. Is Society Willing to Recognize the Defendants’ Expectations of
Privacy as Reasonable?
¶31      We next address whether society is willing to recognize an individual’s subjective
expectation that a one-on-one conversation conducted in a private setting is not being
surreptitiously electronically monitored and recorded. Stated differently, does society
perceive it is reasonable to expect privacy in a personal conversation held in a private
setting? “The reasonableness inquiry hinges on the essence of underlying constitutional
values—including respect for both private, subjective expectations and public norms. In
assessing the constitutionality of technologically enhanced government surveillance in a
particular case, we must identify the values that are at risk, and vest the reasonable-
expectation-of-privacy test with those values.” State v. Blow,

602 A.2d 552

, 555 (Vt.
1991).
¶32      We observe here the importance of avoiding an overly narrow delineation of the
nature of the reasonableness inquiry, because to do so would render every conceivable
factual difference in a conversation subject to litigation. In Montana, the protections
afforded by Article II, Section 11 of the Montana Constitution “extend to all of
Montana’s citizens including those suspected of a criminal act or charged with one.”
Hardaway, ¶ 14. Indeed, we have long observed this principle, even under the search and
seizure provision of our 1889 Constitution:
the exercise of the power of search and seizure is absolutely essential to the
public welfare. . . . But the process may be exercised, and the law enforced
18
and vindicated, without transgressing those constitutional guaranties which
are provided for all alike, the guiltless and the guilty.
State ex rel. Thibodeau v. Fourth Jud. Dist.,

70 Mont. 202

, 209,

224 P. 866

, 869 (1924)
(emphasis added).
¶33    We have on prior occasions quoted extensively from—and discussed the debates
of—the delegates to the constitutional convention with regard to the inclusion of the right
to privacy in the 1972 Montana Constitution. See e.g. Siegal, 281 Mont. at 276-77,

934 P.2d at 191-92

. Delegate Campbell stated that “the [Bill of Rights] 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. . . . [W]e found that
the citizens of Montana were very suspicious of such type of activity.”            Montana
Constitutional Convention, Verbatim Transcript, March 7, 1972, p. 1682.            Delegate
Dahood reported even more strongly: “[I]t is inconceivable to any of us that there would
ever exist a situation in the State of Montana where electronic surveillance could be
justified. . . . [W]ithin the area of the State of Montana, we cannot conceive of a situation
where we could ever permit electronic surveillance.” Transcript, p. 1687. Thus, the
Constitutional Convention delegates were aware of the great value Montana citizens
place on the right to privacy and the clear risk to that privacy engendered by the existence
and advancement of electronic technology as used by law enforcement.
¶34    “[T]he proceedings of the 1972 Montana Constitutional Convention disclose on
the part of the delegates a particular concern over the intrusion of the government into the
19
privacy of Montanans through the use of various types of electronic monitoring and
surveillance.” Siegal, 281 Mont. at 265,

934 P.2d at 184

.
[I]t is clear that the delegates’ concerns encompassed the invasion of
citizens’ privacy without their knowledge by means of various sorts of
electronic audio and visual monitoring and surveillance equipment. Not
only were the delegates wary of existing technology of this type, but they
recognized that this sort of technology would continue to be refined and
would become more widespread and easily available. In this regard their
concerns have been well-founded. Moreover, it is also clear that, in the
delegates’ view, the use of this sort of technology should be justified only
in the most serious of situations, involving heinous crimes where it is
necessary to “risk the right of individual privacy because there is a greater
purpose to be served.”
Siegal, 281 Mont. at 277,

934 P.2d at 192

.
¶35    The express statements of the delegates to the 1972 Montana Constitutional
Convention regarding the government’s use of electronic surveillance against Montana’s
citizens provide direct support for a conclusion that society is willing to recognize as
reasonable the expectation that conversations held in a private setting are not
surreptitiously being electronically monitored and recorded by government agents. We
are convinced that Montanans continue to cherish the privacy guaranteed them by
Montana’s Constitution. Thus, while we recognize that Montanans are willing to risk
that a person with whom they are conversing in their home or other private setting may
repeat that conversation to a third person, we are firmly persuaded that they are unwilling
to accept as reasonable that the same conversation is being electronically monitored and
recorded by government agents without their knowledge.
20
¶36    Nor should the underlying purpose or content of the conversations at issue reflect
upon society’s willingness to accept a subjective expectation of privacy in those
conversations as reasonable. As the Supreme Court of Alaska aptly stated,
[a]ll of us discuss topics and use expressions with one person that we would
not undertake with another and that we would never broadcast to a crowd.
Few of us would ever speak freely if we knew that all our words were being
captured by machines for later release before an unknown and potentially
hostile audience. No one talks to a recorder as he talks to a person. . . .
One takes the risk that his friend may repeat what has been said. One
shouldn’t be required to take the additional risk of an entirely different
character—that his conversation is being surreptitiously transcribed or
broadcast.
.   .    .
. . . . It is axiomatic that police conduct may not be justified on the basis of
the fruits obtained. It is, of course, easy to say that one engaged in an
illegal activity has no right to complain if his conversations are broadcast or
recorded. If, however, law enforcement officials may lawfully cause
participants secretly to record and transcribe private conversations, nothing
prevents monitoring of those persons not engaged in illegal activity, who
have incurred displeasure, have not conformed or have espoused unpopular
causes.
State v. Glass,

583 P.2d 872

, 877-78 (Alaska 1978) (internal citations omitted).
¶37 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, ¶ 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.
C. Nature of the State’s Intrusion
21
¶38 We next address whether the nature of the State’s intrusion in conducting the
searches at issue renders those searches unreasonable under the circumstances before us.
In other words, the remaining question is whether the searches violate the Defendants’
rights under Article II, Sections 10 and 11 of the Montana Constitution.
¶39 As stated above, the Article II, Section 10 right to privacy is not absolute, but may
be infringed upon a showing of a compelling state interest to do so. Even upon the
showing of a compelling state interest, however, state action which infringes upon an
individual’s privacy right must be closely tailored to effectuate that compelling interest.
Hamilton, ¶ 37. Thus, “the State may not invade an individual’s privacy unless the
procedural safeguards attached to the right to be free from unreasonable searches and
seizures are met.” Elison, ¶ 53.
¶40 Our long-standing rule is that searches conducted in the absence of a properly
issued search warrant are per se unreasonable, absent a recognized exception to the
warrant requirement. See e.g. State v. McLees,

2000 MT 6

, ¶¶ 10 and 26,

298 Mont. 15

,
¶¶ 10 and 26,

994 P.2d 683

, ¶¶ 10 and 26.
“The presence of a search warrant serves a high function. Absent some
grave emergency, the Fourth Amendment [and Article II, Section 11 of the
Montana Constitution] has interposed a magistrate between the citizen and
the police. This was done not to shield criminals nor to make the home a
safe haven for illegal activities. It was done so that an objective mind
might weigh the need to invade that privacy in order to enforce the law.
The right of privacy was deemed too precious to entrust to the discretion of
those whose job is the detection of crime and the arrest of criminals.”
McLees, ¶ 26 (quoting State v. Sorenson,

180 Mont. 269

, 274,

590 P.2d 136

, 140 (1979)).
Where, as here, a warrantless search has been conducted, the State bears the burden of
22
establishing that an exception to the warrant requirement justifies the search.      See
Sorenson, 180 Mont. at 273,

590 P.2d at 139

. The State advances alternative arguments
in this regard and we address them in turn.
1. Consent
¶41    The State first argues that the warrantless searches at issue here were authorized
by the confidential informants’ consent to the monitoring and recording of the
conversations. Indeed, we long have recognized that a warrantless search is not unlawful
where it is conducted with consent freely and voluntarily given. See e.g. Sorenson, 180
Mont. at 275,

590 P.2d at 140

. Furthermore,
“when the prosecution seeks to justify a warrantless search by proof of a
voluntary consent, it is not limited to proof that consent was given by the
defendant, but may show that permission to search was obtained from a
third party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.”
Sorenson, 180 Mont. at 275,

590 P.2d at 140

 (quoting United States v. Matlock,

415 U.S. 164

, 171,

94 S. Ct. 988

, 993 (1974)). The State asserts that, because the confidential
informants in these cases arranged with law enforcement to wear the body wires and
clearly consented to the electronic monitoring and recording of the conversations, their
consents justified the warrantless searches.
¶42    As noted above, we derived the third-party consent exception to the constitutional
search warrant requirement in Sorenson from the United States Supreme Court’s decision
in Matlock. While we interpret Montana’s Constitution to provide greater protections for
individuals in the context of search and seizure issues than does the Fourth Amendment
to the United States Constitution, we use some federal Fourth Amendment analysis in
23
addressing issues under the Montana Constitution. See e.g. Scheetz, 286 Mont. at 46-49,

950 P.2d at 725-27

; Hill, ¶ 32. In that regard, we observe that the Supreme Court
recently refined the third-party consent exception in Georgia v. Randolph,

547 U.S. 103

126 S. Ct. 1515

 (2006).
¶43   In Randolph, the defendant’s wife contacted law enforcement regarding a
domestic dispute she had with Randolph. The wife informed the officers upon their
arrival that Randolph was a drug user and items of drug use were located in the house.
Randolph, who was present in the house at the time, denied his wife’s allegations and
unequivocally refused the officers’ request for his consent to search the house. The
officers then obtained the wife’s consent to search. During the search, the officers
observed and seized evidence of drug use. Upon being charged with possession of
cocaine, Randolph moved to suppress the evidence on the basis that his wife’s consent,
given over his express refusal to consent, rendered the searches unlawful. The trial court
denied the motion, the Court of Appeals of Georgia reversed the trial court, and the
Georgia Supreme Court affirmed. Randolph,

547 U.S. at

107-08

126 S. Ct. at 1519

.
¶44   The United States Supreme Court granted certiorari to address the question of
“whether one occupant may give law enforcement effective consent to search shared
premises, as against a co-tenant who is present and states a refusal to permit the search.”
Randolph,

547 U.S. at 108

126 S. Ct. at 1520

. The Supreme Court first reiterated its
Matlock statement that “‘the consent of one who possesses common authority over
premises or effects is valid as against the absent, nonconsenting person with whom that
authority is shared.’” Randolph,

547 U.S. at 110

126 S. Ct. at 1521

 (quoting Matlock,
24

415 U.S. at 170

94 S. Ct. at 993

) (emphasis added). After some discussion of the
underlying principles of co-tenancy, mutual authority over property or effects, and the
Fourth Amendment’s protection of the individual against intrusion by the government,
the Supreme Court held that “a warrantless search of a shared dwelling for evidence over
the express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given to the police by another resident.”
Randolph,

547 U.S. at 120

126 S. Ct. at 1526

.
¶45    The Supreme Court further clarified that
if a potential defendant with self-interest in objecting is in fact at the door
and objects, the co-tenant’s permission does not suffice for a reasonable
search, whereas the potential objector, nearby but not invited to take part in
the threshold colloquy, loses out. . . . So long as there is no evidence that
the police have removed the potentially objecting tenant from the entrance
for the sake of avoiding a possible objection, there is practical value in the
simple clarity of complementary rules, one recognizing the co-tenant’s
permission when there is no fellow occupant on hand, the other according
dispositive weight to the fellow occupant’s contrary indication when he
expresses it.
Randolph,

547 U.S. at 121-22

126 S. Ct. at 1527

.
Here, the search of conversations by means of electronic monitoring and recording,
rather than the search of premises, is at issue. Each party to each conversation was
physically present at the time of the search and had an interest—that is, an interest in the
nature of a co-tenant in physical premises—in the conversation. Under the Randolph
rationale—which we expressly adopt vis-à-vis private face-to-face conversations—the
confidential informants’ consent to the electronic monitoring and recording of the
conversations could not override any objection expressed by the Defendants.
25
Furthermore, because both parties to the conversations were present at the time the
searches were conducted, both parties must have the opportunity to object to the search.
As the Supreme Court observed, law enforcement may not avoid a refusal of consent by
removing a potentially objecting individual from the premises prior to requesting consent.
“A generalized interest in expedient law enforcement cannot, without more, justify a
warrantless search.” Randolph,

547 U.S. at 115

126 S. Ct. at 1524, n. 5

.
¶46    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.
2. Particularized Suspicion Standard
¶47    Alternatively, the State contends that, if we conclude the electronic monitoring
and recording of a face-to-face conversation constitutes a search, it should be subject to a
particularized suspicion standard rather than the Article II, Section 11 probable cause
requirement for the issuance of a search warrant. In essence, the argument is that the
State’s intrusion into the Defendants’ privacy expectations by the electronic monitoring
and recording of their conversations was minimal and, therefore, did not rise to a level of
requiring probable cause.
¶48    We observe at the outset that the State relies on 1993 Chevrolet Pickup and State
v. Hart,

2004 MT 51

320 Mont. 154

85 P.3d 1275

, in support of applying a
particularized suspicion standard to justify the searches of the conversations in the
26
present cases. Neither of the cited cases—one of which involved the search of garbage
placed in an alley and the other a canine sniff of the exterior of a vehicle—remotely
supports applying a particularized suspicion standard to justify a search occurring in an
individual’s home.    “In Bullock and Siegal, we validated the long-standing notion
throughout this country, but especially in Montana, that a person’s residence and his
homestead are secure from unwarranted government intrusion, be it by physical or
technological means.” Scheetz, 286 Mont. at 48,

. In two of the searches
at issue here, the State intruded into the sanctity of the Defendants’ homes for the purpose
of performing those searches by technological means. We will not countenance such an
intrusion under a lesser standard than probable cause.
¶49 We turn, then, to the State’s argument that the particularized suspicion standard
should apply to the search of the conversation between Hamper and the confidential
informant which took place in the confidential informant’s vehicle. It first relies on 1993
Chevrolet Pickup in support of its argument, but that case is readily distinguishable.
¶50 In 1993 Chevrolet Pickup, law enforcement believed a suspect was operating an
illegal drug laboratory. After a several-month investigation of the suspect’s activities,
law enforcement officers conducted a warrantless “trash dive” on garbage cans located in
the alley behind the suspect’s residence and discovered items related to the manufacture
of methamphetamine. Based on the evidence found in the suspect’s trash bags, the
officers obtained a search warrant and the subsequent search of the suspect’s residence,
pickup truck and boat turned up additional drug-related evidence. The suspect moved to
suppress the evidence found during the warrant search, arguing the warrant was invalid
27
because it was based on evidence obtained from an illegal search of his garbage. The
trial court denied the motion, determining that the suspect did not have a reasonable
expectation of privacy in his garbage. 1993 Chevrolet Pickup, ¶¶ 3-4.
¶51 On appeal, we addressed whether the warrantless search of a person’s garbage
violated the person’s rights under Article II, Sections 10 and 11 of the Montana
Constitution. We determined that, where a person has abandoned his or her garbage by
placing it at a curb or in an alley for collection, any continued expectation of privacy in
the garbage is not one society is willing to accept as reasonable. Thus, law enforcement’s
actions of removing the garbage bag and looking through it for evidence constituted
neither a seizure nor a search as contemplated by the Montana Constitution. 1993
Chevrolet Pickup, ¶ 17. Notwithstanding the absence of a seizure or a search, we placed
constraints on such law enforcement activities, including a requirement that law
enforcement have particularized suspicion that a crime is being committed to justify
looking through the garbage. 1993 Chevrolet Pickup, ¶¶ 19-20. Having concluded above
that the electronic monitoring and recording of Hamper’s conversation with the
confidential informant in the informant’s vehicle constituted a search, we need not
address 1993 Chevrolet Pickup further.
¶52 The State also relies on Hart in support of its argument that a particularized
suspicion standard should apply to justify the warrantless monitoring and recording of
face-to-face conversations with the consent of one participant in the conversation. Hart
involved a drug-detecting canine sniff of the exterior of a vehicle. We determined the
dog sniff of the exterior of a vehicle constituted a search, but that such a search may be
28
justified by particularized suspicion of wrongdoing, rather than probable cause sufficient
for issuance of a search warrant. Hart, ¶ 20 (citing Tackitt, ¶ 29). Here, the State asserts
that, because the electronic monitoring and recording of a conversation is even less
intrusive than a dog sniff, particularized suspicion is a sufficient standard here. We
disagree.
¶53 In Tackitt, law enforcement officers used a drug-detecting canine to sniff the
exterior of the defendant’s vehicle parked outside his residence and the canine alerted on
the trunk of the vehicle, indicating the presence of drugs. Tackitt, ¶ 7. We relied on
Elison, ¶ 51, in concluding that the canine sniff constituted a search because Tackitt
maintained a reasonable expectation of privacy in the items stowed in his vehicle’s trunk.
Tackitt, ¶¶ 21-22. We then determined that, although warrantless searches generally are
per se unreasonable, the purpose and minimally intrusive nature of such a canine sniff
warranted an exception to the warrant requirement, but would “still require particularized
suspicion when the area or object subject to the canine sniff is already exposed to the
public.” Tackitt, ¶ 29. Here, however, the private face-to-face conversation in the
vehicle was not exposed to the public. 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.
III. Conclusion
¶54 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
29
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.
¶55 Reversed and remanded for further proceedings consistent with this opinion.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
Justice W. William Leaphart, specially concurring.
¶56 I specially concur in the court’s conclusion that evidence obtained through
warrantless, consensual participant recording of a conversation in a home or automobile
is not admissible in court. Although the court ties its rationale to the private settings
(home and automobile) involved in these cases, I would not limit a Montana citizen’s
reasonable expectation of conversational privacy to “private settings.”
30
¶57 In my view, Montanans do not have to anticipate that a conversation, no matter
what the setting, is being secretly recorded by agents of the state acting without benefit of
a search warrant. As Justice Harlan noted in his dissent in United States v. White,

401 U.S. 745

91 S. Ct. 1122

 (1971), “it is one thing to subject the average citizen to the risk
that participants in a conversation with him will subsequently divulge its contents to
another, but quite a different matter to foist upon him the risk that unknown third parties
may be simultaneously listening in.”

401 U.S. at 777

91 S. Ct. at 1138

. This Court
relied on this distinction in State v. Brackman,

178 Mont. 105

, 115,

582 P.2d 1216

, 1221
(1978), where we recognized that consensual participant monitoring of a conversation in
a shopping center parking lot violated Brackman’s expectations of privacy under the
Montana Constitution.     In State v. Solis,

214 Mont. 310

693 P.2d 518

 (1984), we
specifically noted the concern with electronic eavesdropping expressed during the
debates at the constitutional convention, Solis, 214 Mont. at 316-18, 693 P.2d at 521-22,
and concluded that, in “face to face encounters in a private setting, there is a reasonable
expectation that hidden monitoring is not taking place.” Solis, 214 Mont. at 318, 693
P.2d at 522. Brackman was overruled in State v. Brown,

232 Mont. 1

, 8,

,
1369 (1988). Although the Court now breathes life back into our decisions in Solis and
Brackman by overruling Brown, it does so in the limited context of “private settings,”
i.e., in a home or an automobile.
¶58    Article II, Section 11, like the Fourth Amendment, protects people not places.
State v. Bassett,

1999 MT 109

, ¶ 36,

294 Mont. 327

, ¶ 36,

982 P.2d 410

, ¶ 36 (citing Katz
v. United States,

389 U.S. 347

, 351,

88 S. Ct. 507

, 511). This focus on the person rather
31
than the place or setting is even more compelling in the context of Article II, Section 10,
which “is broader in the sense that it encompasses information and activities in addition
to places and persons.” State v. Nelson,

283 Mont. 231

, 243,

941 P.2d 441

, 449 (1997).
Article II, Section 10, provides that “[t]he 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.” Although an individual’s expectation of privacy may be more
compelling in one setting (e.g., a home) than another, that is not to say that an individual
conversing in a more public setting has no expectation of privacy and must reasonably
anticipate the risk of warrantless consensual monitoring. As Justice Harlan observed in
White, warrantless consensual monitoring “undermine[s] that confidence and sense of
security in dealing with one another that is characteristic of individual relationships
between citizens in a free society.” White, 491 U.S. at 787,

91 S. Ct. at 1143

 (Harlan
dissenting). A “free society” is precisely what Article 10, Section 10, was designed to
foster. This constitutional guarantee ensures that our citizens may continue to engage in
private discourse, free to speak with the uninhibited spontaneity that is characteristic of
our democratic society.     As is evident from the constitutional debates, warrantless
monitoring has a chilling effect on citizen discourse and thereby undermines the “well-
being of a free society.” See Montana Constitutional Convention Verbatim Transcript
Vol. V, pp. 1682-87; Mont. Const., art. X, § 10.
¶59    In my view, a society in which individuals conversing outside a private setting
such as their home must anticipate the risk of state instigated, warrantless monitoring is
not the “free society” envisioned by the framers of our Constitution.
32
¶60    Accordingly, I would resurrect our Brackman holding in its entirety and recognize
an expectation of conversational privacy free from warrantless consensual monitoring, in
any setting, including, but not limited to, a public parking lot.
¶61    I also note that Justice Rice’s dissent castigates the Court for framing the issue too
broadly given that “the facts here do not involve situations where police did not have
particularized suspicion and probable cause.” ¶ 11. One wonders why, if the police had
probable cause, they did not simply apply for a warrant, as the constitution requires.
There is a theme throughout the dissent that someone who chooses to engage in discourse
about criminal endeavors, has no expectation of privacy.1 The examples and rationales
cited are all circuitous in that they assume the “risky” or illegal “nature” of the
conversation in question. An officer does not know that a call is obscene or that the
conversation relates to a drug sale until after the officer listens in or hears the tape of the
conversation. If the officer does have prior reason to believe that an individual has
already engaged in obscene calling or drug sales, then the officer has probable cause to
obtain a warrant. In the absence of probable cause, however, we should not let the ends
1
Examples from the dissent: “without considering the nature and purpose [drug deal] of
the conversation.” ¶ 13; “A person simply cannot have the same expectation of privacy
when he knowingly exposes illegal drugs for the commercial purpose of selling them to a
non-confident as he does while engaged in private socializing with friends and family.”
¶ 19; “because society would not consider a privacy interest in a non-private commercial
drug transaction to be reasonable.” ¶ 23; “The very idea that one engaged in the
commercial sale of illegal drugs to a non-confidant must be given the ‘opportunity to
object’ before police can monitor the parties’ conversation is a flight into the fanciful,
perhaps the ludicrous.” ¶ 28 n.2; “There is not only no indication that the Declaration of
Rights was intended to be applied to such risky, non-private behavior, but the debates
demonstrate just the opposite.” ¶ 38.
33
(the illegal nature of the call) justify the means (monitoring). This is tantamount to
concluding that someone who allegedly engages in theft has no Fourth Amendment
expectation of privacy and thus the police are free to search his house without a warrant.
¶62    The dissent endeavors to distinguish illegal commercial discourse from private
socializing; suggesting that warrantless consensual monitoring will only be allowed in
illegal commercial transactions. What if the transaction were not “commercial,” that the
defendant was delivering drugs free of charge.        Would the dissent’s constitutional
analysis suddenly transform, cloaking the defendant with an expectation of privacy.
¶63    The dissent believes that the Court has strayed from the facts of this case and has
stated the issues too broadly.    The Court’s societal approach is more than justified
however when one looks at the breadth of the dissent’s rationale. The dissent reasons
that “a conversation, unlike a home, is not a shared space.        Once the conversation
commences, i t becomes the individual property of each participant. . . .          Neither
participant can prevent the other (absent privilege) from sharing or repeating the
conversation because each has full control over it.” ¶ 25. Thus despite the dissent’s
protestations that those of us engaged in private conversations about legitimate matters
need not be concerned, in fact under the dissent’s reasoning, no one engaged in a
conversation, wherever the setting, whatever the purpose, has an expectation of privacy
since the other participant (with full control) can, consent to third-party monitoring or
recording. The dissent reasons that a person conversing in a private setting for non
commercial purposes, for example at a family Thanksgiving dinner, or even someone
engaging in illegal activity (e.g., smoking pot at a friend’s house) will have more of an
34
expectation of privacy than the defendants here. What the dissent fails to recognize is
that, whatever the expectation of privacy is (be it heightened or diminished), it can
always be undermined by monitoring through the consent of the other party to the
conversation. In other words, consent of one party to a conversation will always trump
the expectation of the other.
¶64    The dissent’s reliance on our decision in State v. Brown,

232 Mont. 1

 (1988), and the United States Supreme Court’s decision in United States v. White,

401 U.S. 745

 (1971), illustrate this point; that is, irrespective of the setting, any
expectation of privacy in a conversation dissolves in the face of consent by the other
party. The Supreme Court “has held that however strongly a defendant may trust an
apparent colleague, his expectations in this respect are not protected by the Fourth
Amendment when i t turns out that the colleague is a government agent regularly
communicating with the authorities.”      The Fourth Amendment does not protect “a
wrongdoer’s misplaced belief that a person to whom he voluntarily confides his
wrongdoing will not reveal it.” White,

401 U.S. at 749

 (quoting Hoffa v. United States,

385 U.S. 293

(1966)).
¶65 Justice Cotter suggests that Justice Rice’s rationale would apply not just to illegal
commercial transactions, but to all commercial transactions. Although I agree, I think the
dissent’s rationale is even broader than Justice Cotter suggests. It applies to all
conversations, commercial or otherwise. Under the dissent’s reliance on Brown2, as long
2
“We now hold that warrantless consensual electronic monitoring of face-to-face
conversations by the use of body wire transmitting device, performed by law enforcement
35
as one of the participants with “full control” consents, third-party recording or monitoring
simply is not a search under the constitution. It matters not whether the monitoring
occurs in the home or on main street USA. Law enforcement, without the necessity of
showing probable cause or obtaining a warrant, can use this tool at their whim.
¶66 Justice Rice is of the opinion that a society in which individuals feel that they can
speak freely with one another confident that the government cannot monitor the
conversation without a warrant would result in anarchy. He argues that “freedom means
the right to pursue one’s own life within the confines of the solemn principles upon
which the democracy was founded.” In my view, one of the most “solemn” of the
principles upon which our democracy flourishes is the Fourth Amendment’s warrant
requirement which protects citizens from unreasonable intrusion by the state.
¶67 Anarchy is the absence of any political authority; the theory that all forms of
government are oppressive and should be abolished. American Heritage Dictionary 3rd
Ed. Justice Rice’s characterization to the contrary, I am not advocating anarchy. Quite
the opposite; I’m arguing that our constitutional form of government, the Fourth
Amendment in particular, should be enforced-not abolished.
¶68 In this day and age of high-tech surveillance, warrantless monitoring of
conversations between individuals does not bode well for a free and democratic society.
/S/ W. WILLIAM LEAPHART
officers while pursing their official duties, does not violate the right to be free of
unreasonable searches and seizures nor the privacy section of the Montana Constitution.”
Brown, 232 Mont. at 8,

755 P.2d at 1369

.
36
Justice James C. Nelson joins the special concurrence of Justice Leaphart.
/S/ JAMES C. NELSON
Justice Brian Morris concurs and dissents.
¶69    I concur with the Court’s determination that Goetz and Hamper possessed a
reasonable expectation of privacy in their conversations that took place in their own
homes. I part ways with the Court’s conclusion, however, that Hamper similarly enjoyed
a reasonable expectation of privacy in his conversation with White that took place inside
White’s vehicle.
¶70    State v. Brown,

232 Mont. 1

 (1988), plainly controls our decision
on whether Hamper had a reasonable expectation of privacy in the conversation that took
place in White’s vehicle. This Court held that Brown had no reasonable expectation of
privacy in his conversation with an informant in “a vehicle parked in a bar parking lot.”
Brown, 232 Mont. at 3,

. We likewise should conclude that Hamper had
no reasonable expectation of privacy in his conversation with White in White’s vehicle as
there is no meaningful distinction between the facts at issue here and the facts at issue in
Brown.
¶71    This Court discards Brown, along with our seemingly contradictory holding in
State v. Solis,

214 Mont. 310

, 320,

693 P.2d 518

, 523 (1984), however, in light of their
37
reliance on federal jurisprudence and their limited analysis and application of the
Montana Constitution. ¶ 24. The Solis court stated that “in face-to-face encounters in a
private setting, there is a reasonable expectation that hidden monitoring is not taking
place.” Solis, 214 Mont. at 318, 693 P.2d at 522. The Brown court countered, without
any attempt to distinguish Solis, that “there is no violation of Montana’s right to privacy,
or the prohibition against unreasonable searches and seizures, when law enforcement
officers pursing [sic] their official duties perform warrantless consensual electronic
monitoring of face-to-face conversations.” Brown, 232 Mont. at 11,

.
The Court now foregoes any attempt to reconcile the broad rule in Brown and the equally
broad rule, but contradictory rule in Solis, in favor of what it deems to be “more current
and consistent interpretations of Article II, Sections 10 and 11 of the Montana
Constitution.” ¶ 24.
¶72    The Court’s discarding of Brown represents an unnecessary departure from the
principle of stare decisis. We have held that precedent should be overruled only if it is
manifestly wrong. Beckman v. Butte-Silver Bow County,

2000 MT 112

, ¶ 20,

299 Mont. 389

, ¶ 20,

1 P.3d 348

, ¶ 20. This Court squarely has affirmed the analysis in Brown on
several occasions, including State v. Staat,

251 Mont. 1

, 7-8,

822 P.2d 643

, 647 (1991),
and State v. Belgarde,

244 Mont. 500

, 504,

798 P.2d 539

, 542 (1990). Nowhere in these
decisions does the Court question the continuing vitality of Brown’s analysis.
¶73    I cannot agree under these circumstances that the result in Brown is so manifestly
wrong that it should be discarded entirely. The Court cites State v. Hardaway,

2001 MT 38

252, ¶ 51,

307 Mont. 139

, ¶ 51,

36 P.3d 900

, ¶ 51, to justify its discarding of Brown and
Solis. ¶ 23. Hardaway, in turn, cites Solis with approval. Hardaway, ¶ 51.
¶74    For better, or worse, Solis and Brown provide our precedent on the very issue
before the Court--whether warrantless electronic monitoring and recording of a party’s
one-on-one conversations with a confidential informant violates the party’s reasonable
expectation of privacy.    Rather than discarding them to the rubbish heap, I would
reconcile the holdings in Solis and Brown by limiting them to the facts that were before
those courts. I would read Solis to hold that a person may have a reasonable expectation
of privacy in a conversation that takes place in a “small, enclosed office” that ostensibly
remains under the exclusive control of his confidant. Solis, 214 Mont. at 314, 693 P.2d at
520. Solis reasonably could have assumed that the pawnbroker had exclusive control
over his own “small, enclosed office.” By contrast, I would read Brown to hold that a
person may not have a reasonable expectation of privacy in a conversation that takes
place in a vehicle or motel that the person reasonably could not assume was under the
exclusive control of his confidant. Brown, 232 Mont. at 3,

. Both the
vehicle and the motel room at issue in Brown may have been subject to third-party
ownership and a variety of different users, any of whom could subject a conversation to
electronic monitoring.
¶75    I would conclude pursuant to our holding in Solis that Goetz and Hamper
possessed reasonable expectations of privacy in the conversations with the informants
that took place in their homes. Hamper and Goetz reasonably could have expected as
much privacy in their own homes as Solis could have expected in the private office of his
39
confidant. Solis, 214 Mont. at 314, 693 P.2d at 520. I would conclude pursuant to our
holding in Brown, however, that Hamper lacked a reasonable expectation of privacy in
his conversation with White in White’s vehicle, as both Hamper’s and Brown’s
conversations took place under similar circumstances. White’s vehicle--like Brown’s--
was parked in a parking lot. Brown, 232 Mont. at 3,

. Furthermore, the
record does not indicate whether Hamper reasonably could be sure that his confidant
exclusively had control over the vehicle in which their conversation took place. In fact,
the record indicates that Hamper did not know the informant, and presumably he would
not know whether the informant owned or controlled the vehicle in which the
conversation took place.
¶76    Other courts likewise have distinguished a warrantless search of a person’s home
from a warrantless search of a person’s automobile.        The Supreme Court of West
Virginia recently held that warrantless consensual electronic monitoring of face-to-face
conversations in a defendant’s home represents an unconstitutional invasion of privacy.
The court overruled its earlier conflicting decision on the basis that the court had
“assumed, without discussion, that no difference existed between a person’s reasonable
expectations of privacy in his/her home, versus the privacy a person expects outside the
home.” State v. Mullens,

650 S.E.2d 169

, 189 (W.Va. 2007). The court supported its
assertion with its earlier statement in State v. Peacher,

280 S.E.2d 559

, 578 (W.Va.
1981), that “‘[a] person’s expectation of privacy in his automobile is less than that which
he would have in his home[.]’” Mullens,

650 S.E.2d at 189

. The United States Supreme
Court similarly has stated that “one’s expectation of privacy in an automobile and of
40
freedom in its operation are significantly different from the traditional expectation of
privacy and freedom in one’s residence.” United States v. Martinez-Fuerte,

428 U.S. 543

, 561,

96 S. Ct. 3074

, 3084-85 (1976).
¶77    For these reasons, I join the Court’s opinion with respect to its decision that
Hamper and Goetz possessed reasonable expectations of privacy in their conversations
with the informants that took place in their homes. For these same reasons, I dissent from
the Court’s opinion with respect to its decision that Hamper enjoyed a reasonable
expectation of privacy in his conversation with White that took place inside White’s
vehicle.
/S/ BRIAN MORRIS
41
Justice Jim Rice, dissenting.
¶78    It would be a dubious service to the genuine liberties protected by the Fourth
Amendment to make them bedfellows with spurious liberties improvised by
farfetched analogies which would liken eavesdropping on a conversation,
with the connivance of one of the parties, to an unreasonable search or
seizure. We find no violation of the Fourth Amendment here.
On Lee v. United States,

343 U.S. 747

, 754,

72 S. Ct. 967

, 972 (1952).
¶79 The Court today makes the precise error with regard to the Montana Constitution’s
Declaration of Rights, which the United States Supreme Court warned against in deciding
the same issue under the Bill of Rights of the United States Constitution. The Court’s
error springs from an incorrect analytical approach to the issue, resulting in an
unnecessarily broad and sweeping decision not predicated on the specific facts of this
case. Indeed, the inattentiveness to the facts leads the Court to overlook the critical point
of the case, and the unfortunate result is the overruling of our long-standing precedent
and the distortion of the right to privacy.
¶80 Today the Court overrules the state and federal precedent we have long followed
and strongly re-endorsed, and upon which law enforcement in this state has relied for
twenty years. The Court justifies its decision to overturn this precedent by characterizing
our resolution in Solis as non-controlling and our decision in Brown as “merely
parallel[ing] federal jurisprudence . . . and fail[ing] to properly analyze the greater rights
guaranteed by Montana’s Constitution.” Opinion, ¶ 22. I disagree with this assessment.
¶81 First, while I agree that Solis is not “controlling precedent,” Opinion, ¶ 24, I
submit that the fact-grounded reasoning of the plurality opinion in Solis is precisely the
correct analysis to be employed, and that the Solis plurality reached the correct decision
42
under that fact-based approach. However, the Court determines that because Solis is not
“controlling,” it need not be considered at all. Opinion, ¶¶ 18, 24.
¶82 Second, the Court’s contention that our decision in Brown failed to properly
analyze the greater rights guaranteed by the Montana Constitution, Opinion, ¶ 22, is
clearly without merit. In Brown we recognized that “Montana’s Constitutional
protections have an existence which is separate from the Federal Constitutional
protections” and that it is necessary to “offer an independent analysis of the privacy and
search and seizure provisions of the Montana Constitution.” Brown, 232 Mont. at 9-10,

. Accordingly, we lengthened the analysis in Brown beyond the Fourth
Amendment, stating that “[t]he analysis . . . must go further because the framers of the
Montana Constitution specifically provided an additional protection with the right to
privacy provision.” Brown, 232 Mont. at 10,

. Thus, we did not, as the
Court spins, ignore the heightened privacy protections of our Montana Constitution in
Brown.
¶83    Critically, the Brown court concluded that, under the Montana Constitution, the
facts demonstrated that the defendant’s claim to an expectation of privacy was not one
society would deem reasonable, and that the government’s actions, which effectuated
only “the recording of [Brown’s] words,” were not excessively intrusive. Brown, 232
Mont. at 11,

. Under the facts of that case, the Court approved the
warrantless consensual electronic monitoring of a face-to-face conversation regarding a
drug deal. However, the Court today ignores our holding in Brown and overrules that
43
case on the thin basis that Brown “merely paralleled federal jurisprudence on the subject .
. . .” Opinion, ¶ 22.
¶84    It is true that Brown relied upon the United State Supreme Court case of White, a
case which offered a very practical and common sense approach to the same issue we
face today, and we should be wary of abandoning the well established and practical White
decision by overruling Brown merely because Brown followed federal jurisprudence. In
White the High Court emphasized a twentieth century “doctrinal” Fourth Amendment
analysis, explaining the absence of a privacy interest in a consensually recorded drug
transaction with a stranger:
Concededly a police agent who conceals his police connections may write
down for official use his conversations with a defendant and testify
concerning them, without a warrant authorizing his encounters with the
defendant and without otherwise violating the latter’s Fourth Amendment
rights. Hoffa v. United States,

385 U.S., at 300-03

. For constitutional
purposes, no different result is required if the agent instead of immediately
reporting and transcribing his conversations with defendant, either (1)
simultaneously records them with electronic equipment which he is
carrying on his person, Lopez v. United States, supra; (2) or carries radio
equipment which simultaneously transmits the conversations either to
recording equipment located elsewhere or to other agents monitoring the
transmitting frequency. On Lee v. United States, supra. If the conduct and
revelations of an agent operating without electronic equipment do not
invade the defendant’s constitutionally justifiable expectations of privacy,
neither does a simultaneous recording of the same conversations made by
the agent or by others from transmissions received from the agent to whom
the defendant is talking and whose trustworthiness the defendant
necessarily risks.
White,

401 U.S. at 751

91 S. Ct. at 1125-26

 (emphasis added). The Brown court noted
that, while White was a four justice plurality opinion, seventeen years had passed since
the decision, the Supreme Court had since endorsed the holding in U.S. v. Caceres, 440

44 U.S. 741

99 S. Ct. 1465

 (1979), and it had since been applied in the federal circuits.
Brown, 232 Mont. at 8-9,

755 P.2d at 1369-70

. Thus, our Court adopted White’s strong,
practical reasoning and we should not discard it now.
¶85    Moreover, the Court ignores the fact that Brown has been specifically and
repeatedly reaffirmed by this Court. In fact, in Belgarde, when we again entertained an
argument that warrantless consensual monitoring violated the Montana Constitution’s
privacy provisions, we noted our decision in Brown, and then took the unusual step of
holding—emphatically—that “[w]e refuse to reverse this rule.” Belgarde, 244 Mont. at
504,

798 P.2d at 542

(emphasis added). The Court’s departure from stare decisis here is
demonstratively weak and unsupported. With one fell swoop, the Court today overturns
a longstanding and strongly applied line of authority with little concern for the
consequences.
¶86 Having overruled Brown and dismissed Solis entirely, the Court then flits to
another analysis in order to “examine the issue before us anew, applying more current
and consistent interpretations of Article II, Sections 10 and 11 of the Montana
Constitution.” Opinion, ¶ 24. This “analysis” is one which wholly disregards the facts,
generalizes the issue on appeal, and renders broad, sweeping conclusions under the guise
of “more current and consistent interpretations” of the Montana Constitution. I submit
that there could be nothing more “current and consistent” than the interpretation we have
repeatedly applied for the past twenty years.
¶87 After setting forth briefly the facts in the background section of the Opinion, ¶¶ 4-
8, the Court barely mentions them again during the remainder of the Opinion. An
45
explanation for this detachment from the particulars may be that the Court, from the
beginning, appears to have been thinking about broader or different issues than those
actually raised here, as evidenced by the questions the Court asked the State during oral
argument:
Q. It’s the State’s contention that there’s no need for particularized
suspicion or probable cause. In fact, as I understand it, the State doesn’t
even believe that there is any necessity that the cops believe that a crime
was, is, or is about to be committed. They can run somebody with a body
wire into somebody’s home at the cop’s discretion.
A. Because there is no search as this Court held in Brown –
Q. Well, isn’t that true?
A. Well, I think, I think your – the question, with all respect, is phrased too
broadly.
Q. Well, why is it phrased too broadly? If, if this is completely
discretionary with the cops, they can send someone with a body wire into
someone’s home to gather evidence. They can send somebody into a
person’s home just to snoop. They can send somebody into a home to
gather information that might be used in a future prosecution or no
prosecution at all. It’s completely discretionary with the police. Correct?
A. No.
State’s counsel was correct. These questions were indeed phrased too broadly,
demanding answers from counsel for scenarios not at issue.
¶88 The facts of this case do not involve the exercise of “complete discretion” by
police to wire someone “just to snoop” or “to gather information that might be used” or
not used at all. The facts here do not involve situations where police did not have
particularized suspicion and probable cause. Even before wiring the informants, police
had probable cause to believe that both defendants had already committed the crime of
46
criminal distribution of dangerous drugs. Authority to wire aside, the police could have
arrested the defendants because they had already committed a crime.1
¶89 The facts are critical, and this case should be decided on its facts. As the Court
recites, “whether a person has knowingly exposed something to the public and,
consequently, surrendered his or her privacy protections [is determined] by looking at the
particular facts of the case.” Opinion, ¶ 29. See State v. Dunn,

2007 MT 296

, ¶ 13,

340 Mont. 31

, ¶ 13,

172 P.3d 110

, ¶ 13 (explaining that when “ascertaining if a person has a
legitimate expectation of privacy, we look to the circumstances . . . .”); Scheetz, 286
Mont. at 48,

 (stating that we look to “various factors”); State v. Siegal,

281 Mont. 250

, 273-74,

934 P.2d 176

, 190 (1997) (detailing the extensive measures taken
by the defendant to ensure his privacy).
¶90 Although the Court gives “lip service” to the necessity of analyzing the facts, it
largely fails to do so. For example, paragraphs 30 and 37 contain the critical holdings
that the Defendants held an expectation of privacy that society accepts as reasonable.
However, the Court neglects to mention the central factual issue of this case: the
consensual electronic monitoring of a drug deal by police. Instead, and without
considering the nature or purpose of the conversations, the Court issues the sweeping
proposition that there is an expectation of privacy in “face-to-face conversations” held in
1
Pursuant to § 45-9-101(1), MCA, a person commits the offense of criminal distribution
of dangerous drugs by, inter alia, “offer[ing] to sell, barter, exchange, or give away any
dangerous drug[.]” (Emphasis added.) The defendants violated this statute by arranging
the sale transactions with the informants, who reported the “offer” to police prior to the
monitoring. An arrest could have been made without any monitoring. Of course, the
police wisely sought additional evidence to bolster their case.
47
“private settings.” Opinion, ¶ 30. This conclusion, disconnected from the facts, will even
prohibit a participant in the conversation from testifying about what the Defendant said
or did, unless a warrant is first obtained. Not even the Defendants are asking for such a
broad holding—but that is a consequence of leaving the facts behind. The facts of this
case should form the basis of the analysis for the critical legal question before us, and I
thus turn to the facts, beginning with those related to the expectation of privacy and the
reasonableness of that expectation.
¶91 This was a commercial transaction. In each of the two cases before us, the seller,
for the purpose of making a financial profit, offered and then sold a product to a buyer.
But for the seller’s financial motive, and the buyer’s assurance of payment, these parties
would not have met at all. It was the business deal, and only the business deal, which
brought them together. Goetz was selling methamphetamine—Hamper, marijuana.
¶92 As in the typical commercial transaction, the sellers here offered their product to
members of the public—they intentionally exposed and sold their product to customers
who were non-confidants. The length of each transaction is reflective of its impersonal
and commercial nature as each lasted only moments—similar to other retail purchases.
These meetings were not social occasions between friends or family. The exchange of
product and cash was made and the parties immediately went their own way, because the
only purpose of their meeting—the sale—was completed. Thus, in these transactions, the
defendants first “knowingly exposed” their business by offering to sell and then exposed
their product during the actual exchange to someone who was not a confidant to them.
See Scheetz, 286 Mont. at 53,

950 P.2d at 726-27

 (explaining that “[w]hat a person
48
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.”
(internal quotations omitted)).
¶93    The place of the transaction is also a relevant fact, though not necessarily
determinative. See Siegal, 281 Mont. at 260,

934 P.2d at 181

 (stating that what a person
knowingly exposes “even in his own home or office” is not considered private). Goetz
invited Trusler, described by the District Court as a “mere visitor,” into his home on
Main Street and there conducted the brief sales transaction. Hamper met Ms. White first
in a parking lot on Main Street, where he got into her car for the brief conversation and
sale. For the second sale, the District Court found that White was likewise a “mere
visitor” in Hamper’s home where the brief sales exchange occurred.
¶94    The Court’s analysis wholly ignores the specifics of these circumstances and it is
clear that the Court’s decision is significantly disconnected from the factual predicate. In
fact, this disconnect leads the Court to restate the issue on appeal in a generic form as:
“whether society is willing to recognize an individual’s subjective expectation that a one-
on-one conversation conducted in a private setting is not being surreptitiously
electronically monitored and recorded.” Opinion, ¶ 31. Accordingly, the Court only
considers whether there exists a reasonable expectation of privacy in “a personal
conversation held in a private setting[.]” Opinion, ¶ 31. This statement, and others in the
opinion, is so broad that it would apply as readily to governmental recording of a
conversation among friends or relatives socially gathered around the living room, as to
the facts of this case. Indeed, who would disagree that society reasonably expects the
49
government to not record “conversations held in a private setting” such as the confines of
one’s home during a family Thanksgiving dinner? I certainly would not disagree—but
those are not the facts here. The expectation of privacy in a personal family dinner
setting is far different than the expectation of privacy in a commercial transaction where a
product is sold to a non-confidant in a brief encounter. Although remarkably different,
the Court’s imprecise analysis treats them as if they are identical—as if the Court is
powerless to distinguish between these very different factual scenarios.
¶95    The law, however, does make such distinctions. Commercial transactions made
with the public are not the same as social conversations among friends in the living room.
Criminal enterprises are not the same as family Thanksgiving dinners. We should recall
what Chief Justice Earl Warren wrote about the sale of illegal drugs out of a home. He
too realized that these were “commercial” transactions which alter the privacy
expectation:
The fact that the undercover agent entered petitioner’s home does not
compel a different conclusion. Without question, the home is accorded the
full range of Fourth Amendment protections. See Amos v. United States,

255 U.S. 313

 (1921); Harris v. United States,

331 U.S. 145

, 151, n. 15
(1947). But when, as here, the home is converted into a commercial center
to which outsiders are invited f o r purposes of transacting unlawful
business, that business is entitled to no greater sanctity than if it were
carried on in a store, a garage, a car, or on the street. A government
agent, in the same manner as a private person, may accept an invitation to
do business and may enter upon the premises for the very purposes
contemplated by the occupant.
Lewis v. United States,

385 U.S. 206

, 211,

87 S. Ct. 424

, 427 (1966) (emphasis added).
Thus, it is not merely the place, but the circumstances and character of a meeting—i.e.,
all the facts—which are critical to the assessment of the expectation of privacy. We
50
should not endow criminal enterprises with a blanket expectation of privacy just because
they are conducted within a home or within a vehicle. Indeed, a jurist no less concerned
about individual rights than Justice William Brennan was very clear about the privacy
claims of those engaged in the activities of the defendants here:
The Fourth Amendment protects against governmental intrusion upon “the
sanctity of a man’s home and the privacies of life.” Boyd v. United States,

116 U.S. 616

, 630. However, the occupant can break the seal of sanctity
and waive his right to privacy in the premises. Plainly he does this to the
extent that he opens his home to the transaction of business and invites
anyone willing to enter to come in to trade with him.
Lewis,

385 U.S. at 213

87 S. Ct. at 428

 (J. Brennan, concurring).
¶96    The public and commercial nature of the criminal enterprise at issue here—the
sale of illegal drugs to strangers—separates this case from other kinds of crimes, even
drug-related, and further illustrates the necessity of a close factual analysis. For instance,
a person joining others at a friend’s house to smoke pot, though an illegal act, would have
a different privacy expectation than a person who undertakes the risk of meeting with a
member of the public to consummate a drug transaction.               The dynamics of these
situations are clearly different, and it is the different dynamics which instruct the analysis
under the first two prongs of the unreasonable search and seizure test—(1) actual
expectation of privacy and (2) society’s willingness to accept the expectation as
objectively reasonable. A person simply cannot have the same expectation of privacy
when he knowingly exposes illegal drugs for the commercial purpose of selling them to a
non-confidant as he does while engaged in private socializing with friends and family.
Indeed, as shown below, the Defendants here expressed as much.
51
¶97   Consistent with its approach of over-generalizing, the Court attempts to
summarize the statements of the delegates to the 1972 Montana Constitutional
Convention in a manner which appears to provide support for its holding, and concludes
that the Defendants had a reasonable expectation of privacy because “Montanans
continue to cherish the privacy guaranteed them by Montana’s Constitution.” Opinion,
¶ 35. I certainly do not dispute this general conclusion, and do not dispute the general
idea that the delegates to the constitutional convention held privacy in high regard.
However, the Court considers only some of the delegates words, and ignores other
specifically applicable words altogether, thereby covering up the reality that the
delegates’ primary concern was over electronic surveillance and eavesdropping
undertaken by the government without the consent of any party, about which Delegate
Campbell’s indication that such activity “was really not a need and such activity was not
taking place at this time” can be understood, as well as the delegates’ actual expressions
about the factual scenario at issue here. Montana Constitutional Convention, Verbatim
Transcript, March 7, 1972, p. 1682. Delegate Campbell further amplified:
I feel that with “oral communications” you are not excluding the legitimate
law enforcement people, who, with the consent of one party, the person
who is being threatened by phone calls and things like this, to act on behalf
of the victim. The privacy of that individual certainly could be waived with
his or her consent, and there’s certainly no privacy toward the obscene
caller.
Transcript, p. 1685. And Delegate Dahood added:
Yes, let me answer that question. First of all, this does not in any
way relate to the obscene phone call situation, nor does it relate to the
ability of the telephone company to make traces. The logic and reason is
this: all personal rights, constitutional or otherwise, may be waived. Lady
52
A is receiving the obscene phone call. She waives her right and grants the
telephone company the right to intercept that communication. The
individual that’s making the call does not have the right of privacy with
respect to violating the law and making the obscene phone calls, so as a
consequence, we are not interfering with anyone’s rights . . . .
Transcript, p. 1686.
¶98    To be sure, the delegates, as quoted in Siegal, 281 Mont. at 276-77,

934 P.2d at 192

, condemned “wiretaps,” “eavesdropping,” “electronic surveillance” and other forms
of nonconsensual monitoring, yet at the same time spoke approvingly of a party
consenting to the monitoring of a telephonic conversation wherein the other party had,
under the facts, waived the right to privacy in the communication. The case before us
illustrates a similar scenario—consent by one party and facts illustrating no reasonable
expectation of privacy on part of the other in the transaction. The delegates clearly
distinguished between these two different scenarios, but the Court does not. Neither does
the Court acknowledge the delegates’ specific views in this regard.
¶99    Consequently, the Court finds a privacy expectation in what the delegates clearly
stated was a non-private situation. The Court does not explain how a privacy interest
springs forth from a non-private commercial transaction. In paragraph 35, the Court
appears to distinguish between the risk that a conversation will be repeated and the risk
that the same conversation will be consensually electronically monitored by government
agents. However, if this is the Court’s distinction, it is without a constitutional difference
because society would not consider a privacy interest in a non-private commercial drug
transaction to be reasonable. Indeed, our constitutional convention delegates did not, and
neither did some of the greatest legal minds of our time, as quoted herein. Accordingly, I
53
would join them and conclude that no “search” took place.               See Hamilton, ¶ 17
(explaining that where no objectively reasonable expectation of privacy exists a search
does not occur).
¶100 However, even assuming arguendo that a search did occur, the Court’s analysis of
the “nature of the State’s intrusion” again further ignores the facts of the present case and
mischaracterizes the role of consent in our search and seizure jurisprudence.           Most
notably, while the Court overrules Brown on the basis that it “merely paralleled federal
jurisprudence,” in its discussion of “consent” the Court opts to “use some federal Fourth
Amendment analysis in addressing issues under the Montana Constitution” and relies on
the Supreme Court case of Georgia v. Randolph. Opinion, ¶ 42. The Court’s reliance on
federal jurisprudence is inconsistent at best and an unfortunate consequence is the
twisting of the holding in Randolph to fit the issue at hand.
¶101 Randolph involved the search of a home despite one of the co-occupant’s express
refusal to consent to the search. The United States Supreme Court concluded that the
refusal of one occupant to consent trumps the consent of a co-occupant and the police
may not search the shared quarters. Randolph,

547 U.S. at 120

126 S. Ct. at 1526

. The
Randolph situation cannot fairly be likened to the instant case. As the Court correctly
deduces, the item searched here is the conversation.            Opinion, ¶ 45.   However, a
conversation, unlike a home, is not a shared space. Once the conversation commences, it
becomes the individual property of each participant. See Brown, 232 Mont at 10,

 (stating that “both participants [have] an equal interest in the conversation . .
. .”).   Neither participant can prevent the other (absent privilege) from sharing or
54
repeating the conversation because each has full control over it. A conversation is not the
same as a dwelling space and, accordingly, consent of both conversationalists is not
required in order to monitor the conversation.
¶102 However, by concluding that both parties to an electronically monitored
conversation must consent to the monitoring, the Court fails to acknowledge the true
distinction at work here: that consensual monitoring is different than “eavesdropping”—
the monitoring of a conversation by the government without the consent of any party.
The failure to honor the informant’s consent lumps consensual monitoring with
eavesdropping for all constitutional purposes, because the same requirements are
imposed for either, even though they are, according to longstanding jurisprudence, clearly
constitutionally distinct. In sum, the Court renders the party’s “consent” null, giving it no
effect whatsoever. “[T]here is a substantial distinction between ‘[revelations] to the
Government by a party to conversations with the defendant’ and eavesdropping on
conversations without the knowledge or consent of either party to it.” United States v.
Karo,

468 U.S. 705

, 716 n.4,

104 S. Ct. 3296

, 3304 n.4 (1984). (Bracket in original.)
We explain this in Brown: “It is important to stress that this holding does not open the
floodgates to create an Orwellian society and that the individual is not left without
protections against inappropriate electronic eavesdropping.” Brown, 232 Mont. at 11,

.
¶103 The Court’s conclusion also ignores the High Court’s guidance that “[t]he constant
element in assessing Fourth Amendment reasonableness in the consent cases . . . is the
great significance given to widely shared social expectations[.]” Randolph, 547 US. at
55
111,

126 S. Ct. at 1521

 (emphasis added). The widely shared social expectation, as this
Court accepts in paragraph 35, is that each person assumes the risk that a participant to
the conversation may turn around and repeat the conversation. More importantly, we
share the social expectation that we assume a person is who he purports to be. See
Brown, 232 Mont at 11,