State v. T. Larson

11/09/2022
DA 20-0603
Case Number: DA 20-0603
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 223STATE OF MONTANA,
Plaintiff and Appellee,
v.
TRENTON MATTHEW LARSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDC 20-89
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
Melissa Broch, Harris Law Office PLLC, Helena, Montana
Submitted on Briefs: July 13, 2022
Decided: November 9, 2022
Filed:
' ,-6A•-if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Trent Matthew Larson (Larson) was charged with possessing child pornography in
violation of § 45-5-625(1)(e), MCA. He entered into a plea agreement in the First Judicial
District Court, Lewis and Clark County, that reserved his right to appeal the denial of his
suppression motion.
¶2 We affirm and restate the issue as follows:
Did the District Court err when it failed to suppress evidence confiscated by a
manager of a group home, pursuant to the group home’s rules, who subsequently
turned the evidence over to police?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 This case arises out of events occurring at an adult foster care group home in East
Helena where Larson lived. Larson has Asperger’s syndrome. His original placement in
the group home was arranged through his parole and probation officer pursuant to a
sentence for burglary. He lived at the group home for five years until he completed his
probationary term and then continued to live in the group home for another two years until
his electronic devices were confiscated and he was charged with the instant offense.
¶4 Connie Griffin Jacquez (Jacquez) was the owner and manager of the private group
home when Larson lived there. She is neither a law enforcement officer nor a state
employee. When Larson entered the group home, he was advised of the group home’s
rules. The rules were extensive and covered many aspects of a resident’s life, such as
maintenance of regular hygiene; no use of alcohol or drugs; and requirements that a
resident follow their treatment plan, abide by a 10 p.m. curfew, complete assigned chores,
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and participate in household recreational activities. The rules specifically prohibited
certain activities as well. A resident could not possess pornographic material and the use
of an electronic device for such a purpose would subject the device to confiscation. The
rules relevant to these proceedings provided:
6. No pornographic material in the household, computers or movies allowed
in the home . . .
23. Client may not use any computer owned by AFCP.1 Usage of computers,
gaming systems, is up to the discretion of the AFCP and may be
confiscated/banned for violated of house/computer/internet rules at any time.
This also pertains to gaming systems and electronics.
24. AFCP may/will set allotted amounts of time for computer usage. AFCP
also may restrict any computer use in the home. Scheduled times for the use
of the computer is up to the discretion of the house provider.
The rules also provided for a “30-day eviction notice” or, in the case where a resident
continues to violate the rules after frequent warnings, “immediate eviction.” Jacquez
allowed, though not stated in the rules, a resident to have confiscated property back upon
leaving the group home permanently. Larson signed the rules in 2013, thus affirming that
he understood he was not allowed to view or possess pornography and that his electronics
would be confiscated if he did not comply. Every year thereafter, Larson read and signed
the rules indicating that he understood and agreed to them.
¶5 Unfortunately, Larson struggled to follow the rules of the group home. For instance,
he projected adult pornography in a common residential area, which led to complaints from
other residents. He was known to steal children’s and women’s undergarments.
1
AFCP stands for “Adult Foster Care Provider.”
3
Furthermore, he begun “propositioning” Jacquez’s grandchildren and other children in the
neighborhood. To prevent Larson from streaming pornography and engaging in
inappropriate behavior, Jacquez used internet screening technology to block pornography
from coming into the residence over the internet. Larson still found ways to avoid the
blocking technology and continued to view pornography on his phone and computer. As
a result, Jacquez confiscated his electronic devices.
¶6 At some point, Larson enrolled in school so Jacquez decided to give him another
chance with computers. Jacquez allowed him to access his computer for the purpose of
doing schoolwork only. However, Jacquez discovered that Larson was still using the
computer to view pornography. Further attempts by Jacquez to monitor Larson’s
electronics failed and Larson subsequently admitted to Jacquez that “he was having
thoughts of molesting children.” Consequently, Jacquez confiscated Larson’s computer
and the rest of his electronic devices and directed him to seek treatment in a sexual offender
treatment program. He agreed to attend treatment, and Jacquez accompanied him.
¶7 By now, Jacquez had confiscated numerous electronic devices from Larson—a
computer, three or more phones, external hard drives, and video streaming devices.
Notwithstanding, Larson continued to purchase new devices and tried to conceal them from
Jacquez. Jacquez continued to confiscate them and place them in a safe to prevent Larson
from accessing them.
¶8 Jacquez contacted the police on several occasions advising that she had confiscated
pornography from a resident. On the first occasion, police said they would respond but
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never did. Two or three weeks later, a resident informed her that Larson had been hiding
a phone in a plastic bag in the back of the toilet. She confronted Larson about the phone
and saw it contained child pornography when he handed it over to her. Once Jacquez
confiscated the phone, she called the police again, but the police did not answer. Jacquez
then asked Larson to leave the group home permanently. Larson informed her that he was
already planning to move out and had contacted law enforcement for a civil standby so he
could get his electronics back.
¶9 When Larson contacted the police, Deputy Jordan Criske-Hall asked Larson why
he “didn’t just wait until the 30 days was up,” in which case, Jacquez would return his
electronics. Larson replied that “he would probably be arrested” if he answered Deputy
Criske-Hall’s question. The deputy continued to inquire, and Larson eventually disclosed
that he had child pornography on his devices. Deputy Criske-Hall responded to the group
home and informed Jacquez about this conversation. Jacquez told Deputy Criske-Hall that
she had already confiscated some of Larson’s electronics after she observed child
pornography on his computer and phone. Deputy Criske-Hall then asked Jacquez “to
gather up all of the electronics that [she] could find of his.” Jacquez testified that she gave
Deputy Criske-Hall Larson’s electronics that she had already confiscated, along with two
additional thumb drives she seized after Deputy Criske-Hall’s request. Jacquez testified at
the suppression hearing that the only items she believed she had “not confiscated from him
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was like the thumb—some thumb drives[.]”2 Deputy Criske-Hall did not have a warrant
when Jacquez turned over Larson’s electronics.
¶10 After Deputy Criske-Hall confiscated and secured the electronic devices, a detective
from the Criminal Investigation Division applied for a search warrant. The search warrant
was granted on December 11, 2019. The search of the devices revealed “80 or more”
videos and pictures of child pornography involving infants, newborns, and preteen sex with
adult men. Moreover, a search of Larson’s computer yielded anime3 pictures of sex with
toddlers and young females, along with search terms such as “Toddler girls open vagina.”
Larson admitted to detectives that he had used the “Dark Web” to search and look at child
pornography, describing the websites he had visited.
¶11 The State charged Larson with possession of child pornography in violation
of § 45-5-625(1)(e), MCA. Larson moved to suppress any evidence derived from the
electronic devices, arguing that Jacquez became a state actor when she turned over his
electronic devices to police. Larson also maintained that Jacquez, as a third-party, lacked
authority to consent to the State seizing his devices without a warrant. The District Court
held a hearing and Jacquez testified, but Deputy Criske-Hall did not. The District Court
denied Larson’s motion, finding that Jacquez “was not acting at the instigation of law
2
Deputy Criske-Hall took possession of a camcorder, four cell phones, a tablet, a Kindle, a large
external hard drive, a laptop computer, and two thumb drives.
3
“Anime” is a style of “animation in Japan that is characterized by stark colorful graphics depicting
vibrant characters in action-filled plots often with fantastic or futuristic themes.” Anime, Merriam-
Webster’s Dictionary. (10th ed. 1993).
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enforcement” and that “[s]he was acting to enforce the group home rules to which Larson
had consented.” The District Court concluded that Larson had “assumed the risk” that
Jacquez would see the child pornography on his electronics, confiscate the devices, and
turn the electronics over to law enforcement.
¶12 Larson entered into a plea agreement with the State, where the State agreed to
recommend a ten-year sentence to the Montana State Prison with all time suspended. The
District Court adopted the psychosexual evaluator’s recommendation and designated
Larson a Tier 2 sexual offender. Larson reserved his right to appeal the denial of his motion
to suppress.
STANDARD OF REVIEW
¶13 For the denial of a motion to suppress, this Court reviews findings of fact for clear
error and conclusions of law for correctness. State v. Pham, 2021 MT 270, ¶ 11, 406 Mont.
109, 497 P.3d 217. Findings of fact are clearly erroneous if they are not supported by
substantial evidence, the court misapprehends the effect of the evidence, or appellate
review of the record convinces the court that a mistake has been made. State v. Warclub,
2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254.
DISCUSSION
¶14 Did the District Court err when it failed to suppress evidence confiscated by a
manager of a group home, pursuant to the group home’s rules, who subsequently turned
the evidence over to police?
¶15 Larson argues that Jacquez became a state actor once Deputy Criske-Hall asked her
to turn over Larson’s electronic devices and that her actions resulted in a warrantless and
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unlawful seizure.4 Larson asserts that Jacquez did not gather up the electronics on her
“own accord,” but instead acted “as an arm of the police.” He contends that Jacquez
“performed the intrusive conduct to assist law enforcement” rather than for the purpose of
implementing her group home rules. Larson also argues that under the third-party consent
doctrine, Jacquez lacked authority to consent to a warrantless seizure by Deputy
Criske-Hall of Larson’s property. We turn first to Larson’s contention that Jacquez was a
state actor.
¶16 The Fourth Amendment to the United States Constitution and Article II, §§ 10 and
11 of the Montana Constitution protect citizens against unreasonable seizures. Katz v.
United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512 (1967); State v. Staker, 2021 MT 151,
¶ 9, 404 Mont. 307, 489 P.3d 489. A seizure occurs when there has been “some meaningful
interference with an individual’s possessory interests” or “dominion and control” over an
individual’s property. United States v. Jacobsen, 466 U.S. 109, 120-21, 104 S. Ct. 1652,
1660 (1984); Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 2305-06 (1990).
The purpose of §§ 10 and 11 of the Montana Constitution is “to protect the privacy and
security of individuals from unreasonable intrusion or interference.” State v. Hoover, 2017
MT 236, ¶ 14, 388 Mont. 533, 402 P.3d 1224. These protections only take effect when an
unlawful “search” or “seizure” has been established. State v. Funkhouser, 2020 MT 175,
¶ 16, 400 Mont. 373, 467 P.3d 574.
4
Larson does not challenge the scope of the subsequent search or the reasonableness of the time
law enforcement took to obtain a warrant after they took possession of the electronic devices.
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¶17 The Fourth Amendment applies only to government action, and not that of a private
party. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576 (1921); see also
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614, 109 S. Ct. 1402, 1411 (1989)
(holding that “the Fourth Amendment does not apply to a search or seizure, even an
arbitrary one, effected by a private party on his initiative. . .”). In Jacobsen, the United
States Supreme Court explained that “a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the Government or with the
participation or knowledge of any governmental official” does not violate the Fourth
Amendment. 466 U.S. at 114-15 (quoting Walter v. United States 447 U.S. 649, 662, 100
S. Ct. 2395, 2404 (1980)). Thus, when an individual reveals private information to another,
the person assumes the risk that the confidant may reveal the incriminating evidence to
government authorities, and if that occurs, the Fourth Amendment does not protect the
individual from governmental use of the evidence. Jacobsen, 466 U.S. at 115-18. In
contrast, when a private party acts as an “instrument” or “agent” of the State in effecting a
search or seizure, Fourth Amendment protections are implicated. Coolidge v. New
Hampshire, 403 U.S. 443, 489, 91 S. Ct. 2022, 2049 (1971).
¶18 Correspondingly, this Court has held that Article II, §§ 10 and 11 of the Montana
Constitution protect individuals from state action only. State v. Wolfe, 2020 MT 260, ¶ 6,
401 Mont. 511, 474 P.3d 318; State v. Malkuch, 2007 MT 60, ¶¶ 12-14, 336 Mont. 219,
154 P.3d 558; State v. Long, 216 Mont. 65, 67-71, 700 P.2d 153, 155-57 (1985). In Wolfe,
we held that a private person did not act as a state actor when officers suggested the victim
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of a rape answer her cell phone on speakerphone when her perpetrator called her. The
victim was present with law enforcement and reporting the incident when Wolfe repeatedly
texted and called her. Wolfe, ¶ 4. We explained that “[l]ike other constitutional guarantees
of individual liberties, these provisions direct government action only.” Wolfe, ¶ 10. The
Fourth Amendment protections have as their origins and purpose an intent to restrain
sovereign authority and are not intended to be a restraint upon other non-governmental
actors. A private party acting “of her own accord,” therefore, does not effectuate an
unconstitutional and unreasonable search or seizure. Long, 216 Mont. at 71.
¶19 When analyzing whether a private person was acting as a state actor, this Court
determines “(1) whether the government knew of and acquiesced in the intrusive conduct,
and (2) whether the party performing the search intended to assist law enforcement efforts
or to further his own ends.” Malkuch, ¶ 14 (citing United States v. Miller, 688 F.2d 652,
657 (9th Cir. 1982); United States v. Walther, 652 F.2d 788, 791-91 (9th Cir. 1981)). In
Malkuch, we held that a private party’s search was not attributable to the State when the
police officer told the private party he “needed evidence” to support her allegations of
illegal drug activity and the private party subsequently searched the premises and seized
the drugs. Malkuch, ¶ 16. When a private party has a “legitimate, independent motivation”
to advance her own ends, “any dual motive to detect or prevent crime or assist police” does
not make them a government agent. United States v. Cleaveland, 38 F.3d 1092, 1094 (9th
Cir. 1994), as amended (Jan. 12, 1995).
10
¶20 Applying these principles here, we conclude Jacquez was not a state actor when she
gave law enforcement Larson’s electronic devices. First, the record establishes the
electronics had been confiscated before police became involved. There was no pending
criminal investigation; indeed, Jacquez made every effort to help Larson by allowing him
to stay in the group home and get into treatment despite Larson having committed
numerous violations. Deputy Criske-Hall was not involved until after the numerous
devices had already been confiscated and therefore could not have “acquiesced in
[Jacquez’s] intrusive conduct.” Malkuch, ¶ 14. Regarding the second Malkuch factor,
Jacquez never expressed any intent to assist law enforcement in the investigation. The
record shows that she had two motives for collecting Larson’s electronics: (1) to require
Larson to comply with her group home rules, and (2) to dispose of the contraband contained
in the devices. Further, Jacquez disclaimed involvement or interest in the investigation
when she stated that she “would have contacted the police again” and given the contraband
to the police so law enforcement could have “done whatever with it.” She wanted Larson’s
contraband out of her possession, and she disposed of it by handing it over to Deputy
Criske-Hall. Jacquez had an interest in confiscating all Larson’s electronics, including the
thumb drives, to rid the premises of pornographic contraband. Her interest in purging her
home of pornography coupled with Deputy Criske-Hall’s request for her to turn over all
Larson’s electronic devices did not make her a state actor. See Cleaveland, 38 F.3d at
1094.
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¶21 We turn now to Larson’s argument that Jacquez did not have third-party authority
to consent to the seizure of his electronic devices by law enforcement. Although we have
already noted that the Supreme Court, in Jacobsen, established a person assumes the risk
that a confidant may reveal incriminating evidence to government authorities, we begin
with some basic principles surrounding third-party consent. “Warrantless seizures are per
se unreasonable subject to only a few carefully drawn exceptions.” State v. Elison, 2000
MT 288, ¶ 39, 302 Mont. 228, 14 P.3d 456. The State bears the burden of proving an
exception to the warrant requirement. State v. Goetz, 2008 MT 296, ¶ 40, 345 Mont. 421,
191 P.3d 489. Consent represents one of the narrowly drawn exceptions to the warrant
requirement. State v. Schwarz, 2006 MT 120, ¶ 14, 332 Mont. 243, 136 P.3d 989. For
third-party consent to be valid against the defendant, “the consenting party must have
actual authority” to consent to the government intrusion. State v. McLees, 2000 MT 6,
¶ 32, 298 Mont. 15, 994 P.2d 683. A third-party’s authority to consent to a search or seizure
must rest on “mutual use of the property by persons generally having joint access or control
for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has
the right to permit the inspection in his own right and that others have assumed the risk that
one of their number might permit the common area to be searched.” McLees, ¶ 13 (quoting
United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)). “The Montana
Constitution requires that a court reviewing an issue of third-party consent determine—
without deference to the officer at the scene—whether the third-party had common
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authority.” State v. Urziceanu, 2015 MT 58, ¶ 16, 378 Mont. 313, 344 P.3d 399 (citations
omitted).
¶22 Larson argues that Jacquez did not have authority as a third-party to consent to law
enforcement’s seizure of his devices. Larson contends that because the deputy had an
“objective indication” that Jacquez lacked common authority over the electronics, then
Jacquez could not have consented to the seizure. He further argues that the State failed to
satisfy its burden to establish that Jacquez had authority to consent because Deputy
Criske-Hall was not aware of the group home rules. Therefore, Larson asserts that the
group home rules cannot be used to establish that Jacquez, as a third-party, had authority
to consent to the seizure.5
¶23 By agreeing to the group home rules, Larson relinquished his right to the exclusive
possession of certain property which he used in violation of those rules. Larson, by signing
the rules, gave the group home manager joint access and control for the purpose of seizing
electronic devices when they contained pornographic material. Larson knew that Rules 6,
5
Larson contends that, although a resident in Jacquez’s group home, he still maintains his rights
and autonomy. He cites Admin. R. Mont. 37.100.101(2), (3)(o), which provides that “[r]esidents’
needs are to be addressed in a manner that supports and enables residents to maximize their ability
to function at the highest level of independence possible” and residents “have the right to . . . be
encouraged and assisted to exercise constitutional and legal rights . . .” See also § 50-5-1104(2)(i),
(l), MCA (stating that residents retain rights “to privacy in [their] room[s],” “to reasonable
safeguards for personal possessions” and to “have reasonable access to” their personal property).
Larson has not developed this argument on appeal by placing the rule and statute within the context
of the facts here. More particularly, however, the law relating to third-party consent, consent, and
state actors, does not vanish in the face of this authority. Residents do not have the right, by virtue
of the authority Larson cites, to possess pornography—a crime in itself—particularly when they
have consented to confiscation of electronic devices containing pornographic material as a
condition for residing in a group home.
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23, and 24 prohibited him from possessing electronic devices containing pornography and
he consented to the confiscation or a third-party obtaining control over any device that
contained pornographic material. Therefore, Jacquez had the authority to control Larson’s
electronic devices as provided in the rules. By virtue of the house rules to which Larson
agreed, Larson himself consented to the house manager confiscating his property. By
giving the house manager authority to confiscate his electronic devices, Larson assumed
the risk that she would discover the child pornography on these devices and turn this
information over to the police. Here, Jacquez had the authority to turn over Larson’s
electronic devices to law enforcement.
¶24 Finally, Larson on appeal does not specifically distinguish the items taken by
Jacquez before and after police involvement. Larson does suggest the seizure was unlawful
because it “extend[ed] beyond” the items taken by Jacquez on her “own accord[.]”
Presumably, Larson is referring to the seizure of the two thumb drives, which Jacquez
confiscated after Deputy Criske-Hall asked her “to gather up all of [Larson’s] electronics.”
However, Larson did not make this argument before the District Court—either in his
motion to suppress, during the hearing, or in supplemental briefing the District Court
ordered. It is well-established that to properly preserve an issue or argument for appeal, a
party must raise it in the district court. State v. Rosling, 2008 MT 62, ¶ 76, 342 Mont. 1,
180 P.3d 1102. An issue or claim must be timely raised in the first instance in the trial
court because “it is fundamentally unfair to fault the trial court for failing to rule correctly
on an issue it was never given the opportunity to consider.” State v. West, 2008 MT 338,
14
¶ 16, 346 Mont. 244, 194 P.3d 683 (citations omitted). Accordingly, we decline to consider
whether Jacquez’s seizure of the thumb drives was unlawful.
CONCLUSION
¶25 The District Court did not err when it denied Larson’s Motion to Suppress. Jacquez
was acting as a private party when she confiscated, pursuant to rules of the group home,
Larson’s electronic devices containing pornography. Further, by virtue of the rules to
which Larson agreed, Larson consented to the group home manager confiscating his
electronic devices.
¶26 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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