MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

STATE OF MONTANA, )

) CAUSE NO. DC 96-39

Plaintiff, )

) REPLY TO DEFENDANT

vs. ) REIGER’S MOTIONS

)

ERIKA REIGER, )

)

Defendant. )

This is the State’s reply to Defendant’s Motion for Production of Disciplinary Records, Motion to Suppress, Motion for Production of Brady v. Maryland Materials and Information, Motion to Dismiss, and Motion to Dismiss Criminal Endangerment.

1. Motion for Production of Disciplinary Records:

Defendant seeks a fishing expedition of both law enforcement and the social worker’s personnel records under the authority of Kyles v. Whitley. The Defendant’s request is inappropriate. The Defendant’s request places a burden upon the State, and to make such a request, the matter is not malpractice for the defense not to assert, as alluded to by defense counsel, but instead must be made in good faith and with some initial showing of cause, or the motion could well be appropriate for Rule 11 sanctions. The Defendant has made no good faith initial showing of any alleged bias or potential interest that may justify the need for an examination of personnel records. Further, Kyles v. Whitley, does not support the Defendant’s position. Kyles v. Whitley dealt withthe issue of the prosecution withholding information as to statements made by law enforcement and other witnesses that were contradictory or inconsistent with statements that were made at trial. All statements known or in the possession of the state or law enforcement relevant to this offense has been produced. No contradictory or inconsistent statements are known to the state and none are being withheld from the defense. Further, under Kyles v. Whitley, there is nothing that supports the position that a social worker’s personnel file should be disclosed. Deb Cole is not a member of law enforcement, and as such, no authority exists or justifies either the examination of a personnel file, or its disclosure.

2. Motion to Suppress:

Deb Cole is a social worker for the Department of Health & Human Services, Division of Family Services. Deb Cole is not an agent of law enforcement for the State of Montana. She is an administrative employee of an administrative agency carrying out an administrative function. Deb Cole, on the date in question, was performing her administrative duties as a social worker. She was not conducting a search at the time she observed items in the Defendant’s residence, but was conducting an administrative duty of insuring the safety and welfare of a minor child that was in the custody of the Department. Deb Cole was in the residence of the Defendant Reiger with the consent of Reiger. Items observed by the social worker were observed in plain view of the Defendant’s residence, which said observations were provided to law enforcement and were used as elements of probable cause provided to a judge, from which a warrant was issued, a search was conducted, evidenceproperly seized, and the Defendant arrested. The only search conducted of the Defendant’s residence by law enforcement was conducted pursuant to a search warrant. Thus, evidence seized pursuant to a search warrant was validly obtained and the exclusionary rule has no application. Further, the search warrant was not overbroad, and was based on probable cause as stated in the application for the search warrant. There also was reasonable cause to believe that evidence of drugs or drug activity and evidence relating thereto would be contained on the Defendant property, as well as vehicles and outbuildings appurtenant thereto. Therefore, the State requests that Defendant’s motion to suppress all evidence seized as the result of a law enforcement search warrant be denied.

3. Motion for Production of Brady Materials:

All investigative materials and reports known to the State have been produced to the Defendant, and all discovery material has been produced as required by disclosure by the prosecution pursuant to 46-15-322 M.C.A., or will be produced as it becomes available. A copy of family services file on Erika Reiger has been provided to the District Court for in-camera review, and no memorandums between DFS and law enforcement personnel relevant to this case exist. Copies of the 911 dispatch log will be produced when provided to the State, as well as telephone records of Deb Cole for the date in question.

As to the Defendant’s request or claim for information relating to prejudicial joinder, the State advises that there are no companion cases or impeachment information that may lead to impeachment materials of any witness that the State intends tocall. There are also no criminal records, prior criminal charges, records of conviction, prior records of immunity arrangements with any indicted or unindicted co-conspirator or any other state witness. Nor does the State have any knowledge or any information which may tend to be exculpatory, or which may be treated as an investigatory lead to develop or discover exculpatory information, or which is in any way inconsistent with the State’s theory of the case, other than what has already been provided to the Defendant through discovery.

4. Motion to Suppress and Motion to Dismiss Violation of Defendant’s Right to Privacy:

The Defendant’s right to privacy was not abridged or breached by the social worker, Deb Cole. Again, the social worker was performing an administrative function pursuant to statute, administrative policy and court order. The social worker’s actions were under administrative authority, and did not constitute a search. What was in plain view, was reported to law enforcement, who then properly acted on the information, obtaining a search warrant, conducting a search, and seizing evidence. The social worker committed no subterfuge and was not acting as a law enforcement agent in cooperation with the Rosebud County Sheriff’s Office. The social worker, under administrative authority, was performing her duties as a social worker, protecting the rights and safety of the minor child in the custody of the Department.

5. Motion to Dismiss (Criminal Endangerment):

The Motion to Dismiss the criminal endangerment count should be denied. The affidavit in support of the information is based upon a validly executed search warrant, based on probable causeprovided to law enforcement, of the Defendant’s residence. The allegations of felony criminal endangerment, as stated in the information and motion and affidavit in support, are not overbroad or vague, and do provide a reasonable person notice of the criminal conduct proscribed. Further, it is a question of fact for the jury to determine, whether the Defendant had the requisite state of mind, as required under the Montana statute, to have committed the offense of criminal endangerment, a felony. Therefore, Defendant’s motion to dismiss criminal endangerment count should be denied.

DATED this day of November, 1996.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY