10/13/2020
DA 19-0684
Case Number: DA 19-0684
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 260
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GAGE WOLFE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DC-18-3838
Honorable Luke Berger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shandor Badaruddin, Moriarity & Badaruddin, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Jed C. Fitch, Beaverhead County Attorney, Russell Michaels, Deputy
County Attorney, Dillon, Montana
Submitted on Briefs: September 23, 2020
Decided: October 13, 2020
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Gage Wolfe appeals from a March 21, 2019 Fifth Judicial District Court order
denying his motion to suppress testimony regarding statements he made during a phone
conversation with the victim. We affirm.
¶2 We address the following issue on appeal:
Whether the testimony of A.O. and Tricia as to the contents of the conversation with
Wolfe must be excluded as attributable to an unconstitutional privacy intrusion by
a government actor.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On June 1, 2018, A.O. and her friend Tricia went to the Dillon Police Department
and alleged that defendant Gage Wolfe (Wolfe) had committed sexual offenses against
A.O. Officers Alvarez and Ternes conducted the victim interview, which was recorded by
body camera. A.O.’s phone was ringing as the officers entered the interview room. Tricia
explained that the caller was Wolfe, who had apparently been “admitting . . . over the
phone” to the sexual conduct. An officer responded, “Whoa maybe we should, let’s just
start from the beginning.” A.O. explained that she and Wolfe had broken up a year prior
and were trying to remain friends. A.O. related Wolfe had spent some nights at A.O.’s
residence while helping her move and that A.O. had spent a night at Wolfe’s residence
while picking up an item she had left there. A.O. alleged that, during these nights, she had
awoken six to eight times to Wolfe kissing her, penetrating her vagina with his finger, and
touching her breasts and buttocks.
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¶4 Tricia and A.O. told the officers that Wolfe had recently attempted to call A.O.
multiple times and had been sending text messages. A.O. allowed Officer Ternes to look
through the messages, which the officer concluded “get[] to a point where [Wolfe] doesn’t
deny doing it.” While reading the text messages, Officer Ternes noted that Wolfe had
called “5 [or] 6 times since we’ve been sittin[g] here” and he swiped the phone to ignore
another incoming call from Wolfe. The following exchange then occurred:
Officer Ternes: Sounds good. What I need you to do. Um, it might take a
while. If you can email me these messages. Um, and then, the next time he
calls, um, maybe answer it. Let me talk to my partner first and see if that’s
ok. On one of these times and maybe we’ll get him to answer it. Then just
have a conversation. Don’t let him know you’re here with us. And see what
you can, you know, allow him to talk ok. I will talk to [my partner] real
quick, I’ll see if that’s, if we’re ok with that. I think from these messages
here I probably have enough there. This is definitely.
What the law states is it’s under sexual intercourse without consent,
now there’s different degrees under that charge. As far as things that
happened, anything that is penetration falls higher into that, ok. Um, this is
a, this will be a felony issue. This is, it’s not ok.
Um. Is it ok for her, if he calls again, to have a conversation with him
like we’re not here?
Officer Alvarez: If she wants.
Officer Ternes: If that’s ok with you. If you want to do that. Like I said,
there [are] some things in the messages, where he doesn’t just straight come
out and say that “yeah, I did this.”
[phone rings]
Officer Ternes: If you want to. If you don’t that’s ok.
A.O.: I’m good.
[A.O. answers on speakerphone ]
A.O.: Hello?
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Wolfe: Hello? Hello?
A.O.: I’m here.
Wolfe: [Deep sigh] I don’t know [A.O.]. I don’t know what to do I know
sorry isn’t enough. But that’s all I know how to say. Yeah I admit to it. I
did it. I don’t know why. It was stupid of me. But. Can I?
A.O.: What did you do?
Wolfe: I raped you.
A.O.: Do you know how many times you did it?
Wolfe: Once.
A.O.: Did you know it’s actually 6 to 8 times.
Wolfe: How?
A.O.: Every time I was half asleep I could not consent.
Wolfe: I never did it any other time except that one time.
A.O.: Yes you did.
Wolfe: No I didn’t.
A.O.: Yes you did [Wolfe], I remember.
Wolfe: Fine I raped you multiple times. Call the cops on me. Then I’ll get
what I deserve. I know sorry ain’t gonna cut it, but I am sorry [A.O.].
The officers had not obtained a search warrant prior to the conversation.
¶5 Wolfe moved to suppress the evidence under Article II, Sections 10 and 11, of the
Montana Constitution. After a hearing, the District Court ruled that the recordings and
officer testimony regarding the conversation would be excluded, but that A.O. and Tricia,
as private actors, could testify as to the conversation. This appeal followed.
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STANDARD OF REVIEW
¶6 We review a denial of a motion to suppress to determine whether the district court’s
findings of fact were clearly erroneous and whether its interpretation and application of the
law was correct. State v. Allen, 2010 MT 214, ¶ 21,
357 Mont. 495,
241 P.3d 1045.
DISCUSSION
¶7 On appeal, Wolfe contends that the District Court erred in suppressing only the
police testimony and recordings of Wolfe’s self-incriminating statements, while allowing
A.O. and Tricia to testify as to the same statements. He argues that A.O. and Tricia acted
as state agents during the conversation with Wolfe or, alternatively, that their testimony
regarding the conversation constitutes Fruit of the Poisonous Tree.
¶8 Issue: Whether the testimony of A.O. and Tricia as to the contents of the
conversation with Wolfe must be excluded as attributable to an unconstitutional
privacy intrusion by a government actor.
¶9 The Montana Constitution guarantees that the “people shall be secure in their
persons, papers, homes, and effects from unreasonable searches and seizures” such that
“[n]o warrant . . . shall issue . . . without probable cause” and provides that the “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.” Mont. Const. art. II, §§ 10-11.
Together, these provisions offer robust protection from government intrusions. Allen, ¶ 47
(citing State v. Goetz, 2008 MT 296, ¶ 14,
345 Mont. 421,
191 P.3d 489).
¶10 Like other constitutional guarantees of individual liberties, these provisions direct
government action only. The United States Supreme Court has long recognized that Fourth
Amendment “protection applies to governmental action. Its origin and history clearly show
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that it was intended as a restraint upon the activities of sovereign authority, and was not
intended to be a limitation upon other than governmental agencies . . . .” Burdeau v.
McDowell, 256 U.S. 465, 475,
41 S. Ct. 574, 576 (1921). In State v. Long, this Court
abandoned its short-lived view of the Montana Constitution as unique from its federal and
sister-state counterparts in also forbidding private parties from engaging in unreasonable
searches and seizures. State v. Long,
216 Mont. 65, 69,
700 P.2d 153, 156 (1985)
(overruling State v. Hyem,
193 Mont. 51, 58,
630 P.2d 202, 206 (1981)).1 While there may
be many reasons why non-governmental actors should not invade one another’s privacy,
the Montana Constitution is not one of them.
¶11 A privacy violation exists where the subject of the intrusion holds an objectively
reasonable expectation of privacy and where the State’s intrusion is not justified by a
compelling government interest or taken with sufficient procedural safeguards, such as a
properly issued search warrant or other special circumstances. Allen, ¶ 47 (citing Goetz,
¶ 27). The exclusionary rule vindicates these constitutional privacy rights by suppressing
unlawfully obtained evidence in judicial proceedings. State v. Lara,
179 Mont. 201, 204,
587 P.2d 930, 932 (1978) (evidence resulting from constitutional violation “must be
deemed inadmissible as it was tainted by the primary illegality.” (citations omitted));
see also § 46-13-302(1), MCA (“A defendant aggrieved by an unlawful search and seizure
1
The reference to “warrant[s]” and “compelling state interest[s]” in the text of Article II,
Sections 10 and 11, of the Montana Constitution further demonstrate that these provisions restrain
only government action.
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may move the court to suppress as evidence anything obtained by the unlawful search and
seizure.”).
¶12 The State concedes that Wolfe had a reasonable privacy expectation that his cell
phone conversation was not being monitored and recorded by government agents, such that
exclusion of Officers Ternes’ and Alvarez’s testimony and recordings was appropriate.
However, to prevent Tricia and A.O. from testifying as to what they heard, Wolfe must
show that their actions are attributable to the government or that their proffered testimony
was a result of government misconduct. Neither showing is made here.
¶13 Wolfe contends that A.O. and Tricia were acting at the behest of law enforcement
when they heard Wolfe’s incriminating statements, to the point where their actions should
be ascribed to the government and subject to constitutional restraints. See Skinner v. Ry.
Labor Executives’ Ass’n, 489 U.S. 602, 614,
109 S. Ct. 1402, 1411 (1989) (“Although the
Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected
by a private party on his own initiative, the Amendment protects against such intrusions if
the private party acted as an instrument or agent of the Government.” (citations omitted)).
However, the record here demonstrates that Officers Ternes and Alvarez never directed
A.O. or Tricia’s actions to such a degree as to conclude that they had become instruments
of the State. The officers’ mere suggestion and comment that A.O. was free to answer her
phone—“[i]f you want to. If you don’t that’s ok”—does not evince coercion or inducement
that might give rise to questions of government control. A.O. was not in police custody or
negotiating for a deal. Here, A.O.’s conversation with Wolfe within the police station does
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not appear any more attributable to the government of Montana than that which might have
occurred if she had chosen to answer one of his earlier calls on her way to the station.
¶14 Furthermore, A.O.’s actions do not support a conclusion that she had taken on the
role of a government investigator. A.O. did not solicit the call with Wolfe; rather, Wolfe
repeatedly called her. Wolfe, unprompted, began the phone conversation with an
admission: “Yeah I admit to it. I did it.” As the District Court noted, A.O.’s brief
questioning of Wolfe was not highly scripted, intensive, or leading. A.O. was not using
government equipment or information. A.O. and Tricia were not government informants
and they were not participants in an ongoing investigation. In short, A.O. and Tricia acted
as citizens reporting a crime, not as government agents investigating one. The Montana
Constitution does not preclude A.O. and Tricia, as private citizens, from intruding upon
Wolfe’s privacy2 or from testifying as to what they learned as a result.
¶15 Wolfe argues that, even if A.O. and Tricia were not acting as government agents,
their testimony should be excluded under the Fruits of the Poisonous Tree doctrine, as it
does not fall within any of the doctrine’s recognized exceptions, such as attenuation,
independent source, or inevitable discovery. Wolfe must first show that the evidence he
wishes to exclude is traceable to a constitutional violation. The officers’ suggestion that
A.O. answer her phone, her subsequent decision to do so, and the resulting conversation
2
Furthermore, Wolfe had no reasonable expectation of privacy that A.O. would not repeat what
he told her. See Goetz, ¶ 35 (“Montanans are willing to risk that a person with whom they are
conversing in their home or other private setting may repeat that conversation”). Because neither
A.O. nor Tricia were government actors, we need not address whether Wolfe had a reasonable
expectation of privacy that Tricia, as a third party, would not be listening to his cell phone
conversation with A.O.
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itself were not unconstitutional. A.O.’s and Tricia’s testimony originated from A.O.’s
lawful conversation with Wolfe, not the officers’ unlawful monitoring and recording of
that conversation. The evidence Wolfe wishes to exclude is not a result of the constitutional
violation at hand. Therefore, A.O. and Tricia’s testimony is not subject to exclusion.
CONCLUSION
¶16 Because A.O. and Tricia’s testimony resulted from their own private actions, not
from the unconstitutional monitoring and recording by police, the District Court was
correct in declining to suppress it.
¶17 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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