MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

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STATE OF MONTANA, ) CAUSE NO. DC 96-39

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Plaintiff, ) STATE’S REPLY TO DEFENDANT’S

vs ) POST HEARING MEMORANDUM

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MICHAEL JAMES MILLER, )

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Defendant. )

INTRODUCTION

The Defendant filed pretrial motions, which were heard the week of December 2, 1996. Thereafter, the Defendant supplied the Court and counsel with a supplemental post hearing memorandum on issues addressed at hearing, and the following memorandum is in reply to arguments raised by Defendant in post-hearing memorandum.

1. MOTION TO SUPPRESS EVIDENCE SEIZED FROM MILLER’S RESIDENCE.

The State is somewhat surprised and dismayed by the Defendant’s reliance on State v. Hyem (630 P2d. 202, 38 St. Rep. 891 (1981), as authority. Hyem is part of a long line of cases that the Montana Supreme Court had previously held that private searches invaded privacy protected by the constitution, and thus were the proper subject of the exclusionary rule. Hyem, along with this long line of associated cases, was expressly overruledin State v. Long, 216 Mont. 65, 700 P2d. 153, (1985). The Montana Supreme Court, in Long, after expressly addressing Hyem held “we do not take offense at the Supreme Court of Wyoming terming our rule chimerical, which means fantastic or imaginary. Neither are we afraid to walk alone. Rather, we reverse the previously articulated rule because we believe it is unsound.” Id. at 69.

The Montana Supreme Court in Long, in discussing the unsoundness of applying the exclusionary rule to private action, in its discussion, included a reference to the original Montana constitutional convention record, and quoted in part the following delegate statement, “That is, as a participating member of society, we all recognize that the State must come into our private lives at some point; but what it says is, don’t come into our private lives unless you have a good reason for being there.” Montana Constitutional Convention, Transcript of Proceedings, Volume B11, pp. 5185-5182. Id. at pg. 70-71.

The Long court recognized, through this quote, that not only is private action excluded from analysis under the exclusionary rule, the exclusionary rule being a procedural rule to protect society from police action, but it also recognized that the State may come into our private lives if they have a good reason for being there. Clearly, this is a recognition of original constitutional intent under the Montana Constitution’s right of privacy, that there may indeed be special circumstances to which one’s privacy rights may be invaded by the State.

Further, the Long court went to hold “certainly, there is nothing in the constitutional debate that clearly indicates we should depart from traditional constitutional notions. Therefore,in accordance with well established constitutional principals, we hold that the privacy section of the Montana Constitution contemplates privacy invasion by state action only.” Id. at 71. Thus, the Long court equates the State privacy right as equivalent to the Federal privacy right as to these issues, and thus substantiates the State’s position that this court can rely on Federal precedent as cited to in the previous brief by the State, as to the “special needs” analysis. It is clearly appropriate for this Court to rely on Federal case authority on these issues that recognize the “special needs” of a social worker.

The Long court also held that “The exclusionary rule has been applied to deter illegal police conduct and to preserve judicial integrity. When applied to private action, the deterrent’s argument is inapplicable. Private individuals are not schooled in the exclusionary rule and most likely would be unaware of it’s application. Therefore, it would not deter them from engaging in searches that would be illegal if conducted by government officials.” Id. at 71. Likewise, in this case, a social worker is not a police officer and is not engaged in police conduct. As the social worker testified, she has received no law enforcement training and her job is that of a social worker, not as a police officer. Her job is to protect children, not to perform a law enforcement function. The social worker is not trained or educated in the rules of search and seizure, or the application of the exclusionary rule. Thus, the application of the exclusionary rule to a social worker, would accomplish absolutely nothing in deterring a social worker’s conduct.

The Long court also analyzed the “silver platter doctrine” for determination as to whether this doctrine should bar the use of evidence obtained by private persons. The Long court held “If the ‘silver platter doctrine’ is to be recognized for the purposes for excluding evidence obtained by private individuals then, in my opinion, it should be confined instances where the evidence was obtained in violation of criminal statutes thereby rendering the evidence illegal. In this way judicial integrity is preserved by not judicially blessing the fruits of illegal activity. Such an application of the exclusionary rule would not be premised upon the invasion of the accused’s constitutional rights. Rather, the exclusionary rule, as a rule of court procedure, would prevent the State from relying on illegal conduct of a private citizen.” VanHaele, 649 P2d. at 1318, 39 St. Rep. at 1595-1596. Id. at 72.

In Long, the evidence seized by a landlord who had been determined by the District Court to be a trespasser was found to not require the exclusion of the evidence. In this case, the same result should be obtained. The private person, the social worker, was not engaged in any illegal activity. She was performing her duties as a social worker in two aspects: 1.) She was conducting an investigation regarding a referral in which a child or children may be in danger of being abused or neglected; and, 2.) She was conducting an investigation to determine whether the mother of a child, for which the department had temporary legal custody, and for which the mother was under a service treatment agreement, was providing a safe home for the department to allow the child to have an overnight visit.

As such, the social worker was not a trespasser as she was freely invited into the home, and to the extent that the court may or could find that the social worker at some point became a trespasser, it does not rise to the level that judicial integrity would require excluding the evidence of observations made by the social worker while conducting her home visit and investigation. The Montana Constitution’s right to privacy is limited and/or can be restricted by a compelling State interest.

In this case, the protection of innocent children, who have previously been adjudged by this Court in independent proceedings to either be abused or neglected, or in danger of being abused or neglected, is paramount to the rights of the mother, who is party to the adjudication, had been ordered to cooperate with the department, and who had voluntarily executed the service treatment agreements with the department, agreeing to cooperate in assuring that the children were no longer being abused or neglected.

The application of the exclusionary rule to the work performed by a social worker in protecting children, would be tantamount to nullifying the social worker’s ability to conduct investigations and to meet the needs of both children and the State in protecting children from being abused and neglected.

Erika Reiger, a party to Rosebud County Sixteenth Judicial District Court action Cause No. DJ 95-17, was subject to a service treatment agreement, (see attached Exhibit 2), and a temporary legal custody order (see attached Exhibit 1), issued by this Court the 20th day of May, 1996. In that order, the Court ordered that the Department of Family Services had the “right toplace” the child in an appropriate placement of the department’s choice. The right to place is rendered meaningless if the department has no authority to conduct investigations and to enter into homes of the individuals who are parties to the action seeking placement of children with them, to make a determination as to whether that home is appropriate for placement. Erika Reiger was ordered to “cooperate with the Department” of Family Services and law enforcement officials. As a party to the action, and being ordered to cooperate, implies the court-ordered consent of Erika Reiger to the department for their entry into homes occupied by her so that the department can determine that the home is safe for the child or children, to either reside or visit. To place a search warrant requirement into this process is unworkable and detrimental to children.

Additionally, subsection (e) of the order provides, “That the Department of Family Services shall have the right to approve, arrange, and supervise all visitation between the family and the youth.” Clearly, the department can neither approve, arrange, or supervise visitation between the family and the youth, if the mother, Erika Reiger, is not required to allow the entry of social workers into the home where the child would be at, to insure that the home is safe.

Further, the mother, Erika Reiger, executed a service treatment agreement between herself and the Department of Family Services on April 5, 1996, under authority of the temporary legal custody order on file and of record in Cause No. DJ 95-17, (Exhibit 2). Erika Reiger finally admitted under cross-examination during the hearing that she had either read theservice treatment agreement and/or had it read or explained to her, and had signed it. Under goal #6 of the treatment plan, Erika Reiger agreed “to provide the Department of Public Health and Human Services with the necessary information to further develop service treatment agreements if necessary so that her child may safely return to her home.” This stipulation and agreement signed by Erika Reiger has to imply that the department can enter and inspect any home in which she resides to insure the safety of the home, so that the child could return. Erika Reiger also stipulated in the service treatment agreement “to cooperate with the department and the social worker.” This signed service treatment agreement by Erika Reiger can be interpreted as a consent in writing to the entry and examination of her home in the interests of her children. Erika Reiger also stipulated and agreed, through the service treatment agreement, to remain drug and alcohol free. Implicit with that agreement is the authority to the department to check and make sure that the defendant is drug and alcohol free, which would include not only random urinalysis, but inspections of the home to make sure drugs are not physically present. Erika Reiger, in the service treatment agreement stipulated to allowing the department “to provide support and services to aid in Erika remaining drug and alcohol free.” Implicit in this is for Erika to allow the social worker entry into her home, to insure that she is remaining drug and alcohol free. The department’s principal concern with Erika Reiger was her long history of substance and alcohol abuse, and its affect on her children, and the initial temporary investigative authority, and the resultant temporary legal custodyorder, was a direct result of Erika Reiger’s drug use and abuse. The temporary legal custody order as well as the service treatment agreements entered into with Erika Reiger were directed at addressing Erika Reiger’s substance abuse problems, to limit or prevent the danger of the children being abused or neglected, as a direct result of Erika Reiger’s drug and alcohol abuse problem.

Further, the service treatment agreement indicated that Erika agreed and stipulated that the department would “provide a safe and appropriate environment for herself and child.” Again, this stipulation would be utterly meaningless unless the department had authority to enter into Erika’s home, and to inspect it for appropriateness and safety. In the service Treatment Agreement, Erika also expressly stipulated that the department would “monitor Erika’s living arrangements and visitation with Tia.” This again is expressed written consent on the part of Erika to allow the department into her home and to inspect the home, to supervise and arrange for visits and living arrangements, so that Erika would be able to have visits with her daughter. Erika entered into this stipulation knowing that unless she consented to this authority, her child would not be allowed to visit. The department would not be able to perform this task unless it could enter into the home, the entire home, to monitor these living arrangements and visitation. The statement by Erika Reiger at the time of the visit of social worker Cole, that her common bedroom with Defendant Miller was a “mess”, and that she did not want the social worker to enter, is insufficient to nullify the authority granted by either the temporary legalcustody order, or the expressed written consent of Erika Reiger contained within the service treatment agreement.

These facts are also distinguished from the constitutional analysis applicable and used for law enforcement searches, and whether law enforcement had expressed consent. Rather, the social worker should be held to the constitutional standard of what was reasonable for a social worker to do. In this case, with the social worker knowing what she knew, having both temporary legal custody of Erika Reiger’s one child, a service treatment agreement signed by Erika, a new referral specifying that “bad things” go on in the bedroom, and that Erika Reiger is currently using drugs, it was reasonable for the social worker to inspect the bedroom. Further, it is reasonable to conclude, that Erika Reiger’s expression that the room was a “mess”, was reasonably interpreted by the social worker to mean just that, that Erika Reiger was concerned about the messiness of the room, but it was not an expressed denial of access. Both the social worker and Reiger knew, pursuant to the temporary custody order, and the service treatment agreements, that a denial of access would constitute a denial of Erika Reiger’s right to have her child have a home visit. Thus, it is reasonable for the court to conclude that Erika Reiger consented to the entry into her bedroom by court order, the service treatment agreement, and the voluntary admission of the social worker into home. The manner in which Defendant Reiger expressed concern regarding the messiness of the bedroom, was insufficient to negate the consent, when viewed from the totality of the circumstances.

Lastly, the Defendant’s attack of the social worker’s veracity as to the investigation of the new referral falls short. The affidavit in support of the search warrant provides in relevant part, paragraph 5 of page 2, “it had been reported to Deb by Tia’s therapist that Tia had reported that her mother, Erika, and boyfriend, Mike Miller, were using drugs and that there was a room in the home that Erika and Mike would go into and ‘do bad stuff’, and that Tia was not allowed in that room”. The Defendant is rightly very concerned about this information as it goes a long way towards independently establishing probable cause for a search of the residence, independent of what was observed in the Defendant’s bedroom and bathroom.

The defense’s diversionary tactics of focusing on a computer generated time on a printout of the referral, and the questioning of the destruction of original notes, does not impact or affect the veracity of the social worker witness. Although during testimony there was some confusion initially regarding a date that appeared on the report of the referral, the witness did clarify her testimony that it was her belief that the time questioned was the time at which the referral was printed out on the computer, which was in response to a defense request for that printout. There is absolutely nothing that contradicts or impeaches the social worker’s direct testimony that she in fact received the referral on the morning in question, and then immediately upon receiving the referral acted on that referral, going to the Defendant’s residence to investigate as a social worker. The court is well aware of many professionals, from law enforcement to attorneys, who do not keep original notes aspermanent records, but as a usual course of practice, use notes solely for the purpose of generating their reports, after which the notes are routinely either destroyed or disposed of. To do otherwise is merely cumulative and unnecessary. To seek original notes is a usual defense tactic of fishing for contradictions or inconsistencies, that do not exist. Therefore, the referral is well-documented in the application for the search warrant, was testified to by Deb Cole on direct testimony, and was supported by the computer printout exhibit as explained. Therefore, this element of probable cause is, and should remain, part of the probable cause that existed for issuance of the search warrant, and should properly be considered by the court in the determination of whether probable cause existed for issuance of the search warrant.

Thus, in summary, the State’s position regarding Defendant’s motion to suppress and application of the exclusionary rule is as follows:

1.) No Search: What occurred in this case was not a search within the meaning of the fourth amendment, implicating the exclusionary rule. Either the authority analyzing searches by private persons is applicable, or the administrative inspection by a social worker simply does not rise to the level of constitutional analysis as indicated by the Long court, or by the line of clearly established Federal authority that recognized the “special needs” analysis of a social worker as not being a search. Defense has indicated that the State of Montana has not recognized a “special needs” analysis recognized by Federal Court. This is incorrect. Although the Montana Supreme Court has notspecifically addressed the “special needs” of a social worker, it has addressed the related issues of the “special needs” of a parole and probation officer, and in that context has recognized the “special needs” analysis. See the following parole and probation cases that “special needs” have been recognized. State v. Boston, 51 St. Rep. 1142, 889 P2d. 814 (1994), State v. Hall, 249 Mont. 366, 816 P2d. 438 (1991), State v. Hawkins, 239 Mont. 404, 781 P2d. 259 (1989), State v. Sigler, 236 Mont. 137, 769 P2d. 703 (1989), State v. Small, 239 Mont. 309, 767 P2d. 316 (1989), State v. Burke, 235 Mont. 165, 766 P2d 254 (1988).

2.) If search - consensual: The facts are that Erika Reiger consented to the entry of her home to the social worker Deb Cole. The temporary legal custody order, as well as the service treatment agreement, when read together, is an expressed written consent and order to the inspection of the home, when viewed by the totality of the circumstances and the provisions therein. Further, the expression of concern regarding messiness, after admitting into the home, was reasonably interpreted by the social worker as not a revocation of the right to inspect the home, and therefore items observed during the inspection are appropriate to include in a determination of probable cause for a search warrant.

3.) If Search - Not Unreasonable: If the inspection conducted by the social worker did constitute a search, it was not unreasonable. The fourth amendment and the exclusionary rule protects only unreasonable searches and seizures, as a restriction on law enforcement. Here the work of a social worker to conduct a home study investigating the home of a child that the department had temporary legal custody over, and to investigate a newreferral of dangerousness to children based on drug use and abuse, is not an unreasonable search. Further, the application of the exclusionary rule to the work performed by a social worker is inappropriate, as a social worker is not law enforcement, and as not being law enforcement, the intended affect or rationale for the exclusionary rule, has no application. When the reason for the rule fails, the rule falls.

Alternatively, the state offers the following alternative analysis, if the Court does not accept the analysis as provided by the State above. For purposes of argument, the State has analyzed the affidavit in support of the search warrant, with the view that if the Defendant’s concerns regarding entry into the bedroom were valid, then the search warrant must be examined by the “four corners” to determine whether what remains in the search warrant is sufficient to support probable cause.

With that in mind, the State has attached hereto as Exhibit 3, a copy of the search warrant which the state has identified those words which the state contends are directly attributable to social worker Cole’s entry into the Defendant’s bedroom and bathroom. Those passages have been delineated with a line-out which the state contends are the only provisions within the affidavit that would be subject to the exclusion, if the court would rule that it was improper to include information that directly resulted from the social worker’s entry into the bedroom and bathroom. Extraction of those facts constitutes approximately two pages out of an eight page affidavit.

When viewed without that information, the affidavit still supports the finding of probable cause for issuance of thesearch warrant. The referral contained in page 2, paragraph 5, of the affidavit in support is quite compelling (Exhibit 3), and demonstrates a report that the Defendant was using drugs in the home, as reported by the parties’ child, and that there was specifically “bad stuff” going on in a particular room, to which the child was not allowed. This is further corroborated by the social worker’s investigation at the home in which she demanded repeatedly to receive a urinalysis from Erika, to which Reiger refused to consent to a urinalysis, as well as substantial information as to the behavior and demeanor of the Defendant, which can be characterized as suspicious, indicative of guilt or wrongdoing. Erika Reiger, on three occasions, refused to consent to a urinalysis. When combined with the fact that known drug users and associates were at, or had been at the premises recently, and the other miscellaneous facts in the affidavit, supports a finding that there was sufficient probable cause for the issuance of a search warrant to search the premises for drugs. Therefore, under any analysis, probable cause existed for the issuance of the search warrant, and evidence that was found as a result of the execution of the search warrant, should be held admissible.

2. MOTION TO SUPPRESS MONTANA POWER COMPANY PROPERTY.

The State on this issue will defer largely to its earlier brief on this issue, and its analysis previously given of State v. Hembd. The Defendant has challenged that the discovery of the tools were not inadvertent, and thus would render their admissibility invalid, at least to those tools beyond the impact wrench. However, as previously noted in the Hembd decision“inadvertence does not require the police to be totally dumbfounded or surprised by the discovery of incriminating evidence, the fact that its presence may be within the realm of foreseeable possibilities or even expected, does not destroy inadvertence that the police did not arrive specifically planning to look for the evidence.” In this case, it is clear that the police did not arrive looking for tools. However, during the course of their search, they did discover tools that appeared to belong to Montana Power. The officers were validly conducting the search and had not left the search scene prior to discovery of the tools. All tools were conceded by the defense to be in plain view, and the fact that the apparent nature of the stolen tools was developed during the course of the search does not change their apparent nature, that in fact they were stolen and that probable cause existed to believe that they were stolen.

Defense would want to adopt a standard that law enforcement, before seizing items of an apparent incriminating nature, must be able to prove the incriminating nature beyond a reasonable doubt, or beyond a shadow of a doubt, before those items can be seized as evidence. Obviously, this is not the case, and whether an item is stolen or may be incriminating should be held to the same probable cause requirement as required by the search warrant. During the course of the investigation and during the course of the execution of the search warrant, law enforcement developed it’s apparent knowledge by consulting with Montana Power, and confirming that the tools in plain view were in fact from Montana Power. In fact, Montana Power had not checked out the tools to the Defendant or anyone else. On the face of that,with the tools identified, and established that they belonged to Montana Power, and that they had not been checked out, the probable cause standard to justify their seizure was met. Whether the defense is able to establish at trial that it would be possible for the Defendant to obtain the tools by some other means other than theft, is a question for the jury, and certainly does not go to the admissibility of the tools themselves as stolen property seized validly during a search warrant.

46-5-224 M.C.A. provides that evidence “may be seized pursuant to a search warrant”. Since the search warrant is issued on probable cause to search for evidence, then it follows that what is “evidence”, must be judged from a probable cause standard.

If this had been a homicide case, in which the victim had been knifed to death, and what had been in plain view, was a bloody glove, there would be probable cause to believe that the bloody glove was evidence relating to the crime of the homicide, although who the glove belonged to, who the blood belonged to, and whether it directly related to the homicide, would be a fact to be proved later.

Obviously, the tools in plain view that were developed to be apparent evidence of a theft, were validly seized and should be admissible at trial. As previously argued by the State, and not rebutted by the defense, what is in plain view, can be examined by sense enhancement. Similar to the use of dogs for sniffing and binoculars for viewing, the black light utilized enhanced the sense of vision. The black light was used to examine what was in plain view, further enhancing the apparent nature ofthe tools in question as being evidence of a theft from Montana Power Company.

3. MOTION TO SUPPRESS THE INTERCEPTED TELEPHONE CONVERSATIONS.

The State also relies on previous briefing on this issue, however responds to Defendant’s contentions, and reliance on 46-5-221 M.C.A..

The State concedes that 46-5-221(4) provides “particularly describes who or what is to be seized”, and in this case, the application for search warrant did not list the interception of incoming phone calls as items to be seized.

However, the Montana Supreme Court has been quite broad in its interpretation, and has allowed seizure of other items if it was found that they reasonably related to the search authorized by the warrant. In this case, at the suppression hearing, Officer Neidhardt testified that incoming telephone calls during a drug search are often indicative of illegal drug transactions and drug activities between buyers and sellers, and may well constitute evidence in support of the drug investigation, which was the subject of the search. Obviously, incoming telephone calls did relate to the subject matter of the search, a search for drugs and evidence relating to illegal drug use, sale, or possession. In Doe v. St., 256 M 248, 846 P2d. 1018 (1993), the Supreme Court found the seizure of nude photographs, incident to the execution of the search warrant for tax records, was admissible as within the scope of the warrant. Similarly, in State v. Meader, 184 Mont. 23, 601 P2d. 386 (1979), the Supreme Court found the seizure of two license plates bearing the Defendant’s nickname and aletter addressed to the Defendant at the place illegal drugs were found, was permissible because the items tended to show the Defendant’s dominion and control over the premises, and were therefore reasonably related to the search authorized by the warrant. See also State v. McKinsey, 177 Mont. 280, 581 P2d. 1205 (1978), where the Supreme Court held that items other than those specifically described in the search warrant may be seized as long as a reasonable relationship is demonstrated between the search authorized in the warrant and seizure of the items not specifically described therein.

In this case, testimony at hearing demonstrated the reasonable relationship of answering the telephone calls as it related to the search authorized by the warrant, so therefore should be admitted by this Court.

RESPECTFULLY SUBMITTED this day of December, 1996.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY