City of Billings v. K. Hofman

10/05/2021
DA 20-0082
Case Number: DA 20-0082
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 261N
CITY OF BILLINGS,
Plaintiff and Appellee,
v. FILE
KATRINA LYNN HOFMAN, OCT 0 5 2021
Bowen Greenwood
Clerk of Suprerne Court
Defendant and Appellant, State of Montana
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 19-0041
Honorable Mary Jane Knisely, Presiding Judge
COTINSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant
Attorney General, Helena, Montana
Gina Dahl, Billings City Attorney, Chantel Anderson, Deputy City
Attorney, Billings, Montana
Submitted on Briefs: August 4, 2021
Decided: October 5, 2021
Filed:
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause nurnber, and disposition shall be included in this
Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Katrina Lynn Hofinan was convicted of two counts of Violation of Order of
Protection in the Billings Municipal Court after multiple alleged contacts with C.S., the
person protected by the order. The Thirteenth Judicial District Court affirmed. On appeal
to this Court, Haman argues that the Municipal Court should have excluded from evidence
a recording C.S. made of one of Hofman's phone calls without her knowledge because C.S.
violated Montana's Privacy in Communications statute, § 45-8-213, MCA. We affirm.
¶3 In February 2018, C.S. obtained an order of protection against Haman, his former
girlfriend, because she was allegedly harassing him and his family through text messages.
The protective order stated in part that "[Haman] shall not harass, annoy, disturb the peace
of, telephone, email, contact or otherwise communicate, directly or indirectly, with [C.S.]."
In March 2018, Haman violated this provision by phoning C.S. more than fifty times
within one hour. C.S. recorded one of these phone conversations because he knew that
Hofman typically called from unknown phone numbers. C.S. provided the recording to
Officer Stovall, the investigating officer. Officer Stovall also photographed C.S.'s phone
to document Hofman's numerous calls.
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¶4 The City of Billings charged Hofman in the Municipal Court with two counts of
Violation of Order of Protection. The Municipal Court held a trial on December 12, 2018.
At trial, Hofman's defense attorney objected to the admission of the recording on the
ground that it was obtained in violation of the Privacy in Comrnunications statute. The
City countered that Hofman should have raised the objection in a pretrial motion to
suppress. The court denied the objection, noting that, although Hofman had every right to
report the incident to law enforcement, she could not use the Privacy in Comrnunications
statute to exclude the recording from evidence. The court also agreed with the City that
the objection should have been raised in a pretrial motion to suppress.
¶5 On appeal to the District Court, Hofman argued that the Municipal Court abused its
discretion when it refused to consider her objection and that the court erred when it
admitted the phone recording. The District Court held: (1) the Municipal Court did not
abuse its discretion because Hofman had ample tirne and opportunity to raise her objection
before trial and, therefore, could not establish the "good cause" exception of
§ 46-13-101, MCA; and (2) the Municipal Court did not err by admitting the recording
because the Privacy in Cornmunications statute "does not provide an independent statutory
remedy" for suppression of evidence.
¶6 We review "an appeal of a district court's decision on appeal from a rnunicipal court
as if the appeal originally had been filed in this Court." City of Missoula v. Pope,
2021 MT 4, ¶ 5, 402 Mont. 416, 478 P.3d 815 (citation omitted). We review a denial of a
motion to suppress to determine whether the district court's findings of fact were clearly
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erroneous and whether its interpretation and application of the law were correct.
State v. Wolfe, 2020 MT 260, ¶ 6, 401 Mont. 511, 474 P.3d 318 (citation omitted). Hofman
asserts that the issue she appeals is properly before this Court because the trial court had
full opportunity to consider it after hearing the parties' arguments, and both the Municipal
Court and the District Court addressed it. We turn to the merits of Hofinan's claim.
¶7 In State v. Long, 216 Mont. 65, 71, 700 P.2d 153, 157 (1985), we held that
"the privacy section of the Montana Constitution contemplates privacy invasion by state
action only." We explicitly overruled a line of cases holding that "private searches invade
privacy rights protected by the Constitution and are properly the subject of our exclusionary
rule." Long, 216 Mont. at 67, 69, 700 P.2d at 155-56 (overruling State v. Hyem,
193 Mont. 51, 630 P.2d 202 (1981), and similar cases). In State v. Christensen,
244 Mont. 312, 319, 797 P.2d 893, 897 (1990), we addressed the question Long did not
resolve, stating that "the exclusionary rule does not apply to evidence resulting from the
conduct of private individuals, even if felonious, unless that conduct involves state action."
¶8 Hofinan does not argue that C.S.'s recording of her phone call involved any state
action. She instead urges this Court to revisit Long and re-establish the line of precedent
it overruled. In support of this argument, Hofinan cites State v. Van Haele, 199 Mont. 522,
530, 649 P.2d 1311, 1315 (1982), overruled by Long, where we stated that adrnitting
illegally obtained evidence by private citizens would "encourage a vigilante movementil"
We considered and rejected similar policy arguments in Long and in Christensen.
See Long, 216 Mont. at 71-72, 700 P.2d at 157-58 (discussing the extension of the silver
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platter doctrine and holding that "judicial integrity" did not justify exclusion of evidence
seized by a private trespasser); Christensen, 244 Mont. at 317-18, 797 P.2d at 896("The respondent's arguments awaken the image of spectral horsemen riding forth from
Virginia City to enforce law and order in our communities, but leaving in their dust the
trampled remnants of the constitution."). We decline to revisit Long as Hofman offers no
novel arguments for overruling it and fails to demonstrate that it is manifestly incorrect.
¶9 Hofman's situation is addressed squarely by Christensen. Even if C.S. violated the
Privacy in Communications statute, the recording is not subject to the exclusionary rule
because C.S. obtained it privately, without state involvement. Therefore, the Municipal
Court correctly overruled Hofman's objection to the admission of the phone recording.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for mernorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law. The District Court correctly
applied the law when it upheld Hofinan's conviction. Its December 10, 2019 Order is
affirmed.
Justici
We Concur:
Chief Justice
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Justices