author: JUSTICE NELSON JUSTICE GRAY, CHIEF JUSTICE TURNAGE

text:
    THE ASSOCIATED PRESS; BIGFORK EAGLE; THE BILLINGS GAZETTE; BOZEMAN DAILY CHRONICLE; THE MONTANA STANDARD; GREAT FALLS TRIBUNE; HAVRE DAILY NEWS; HELENA INDEPENDENT RECORD; THE DAILY INTER LAKE; KECI-TV, MISSOULA; KFBB-TV, GREAT FALLS; KXLF-TV, BUTTE; KRTV-TV, GREAT FALLS; KTVQ-TV, BILLINGS; KULR-TV, BILLINGS; LIVINGSTON ENTERPRISE; MILES CITY STAR; MISSOULIAN; MONTANA NEWSPAPER ASSOCIATION; NEWS MONTANA, INC.; (as publishers of BIGHORN COUNTY NEWS, CARBON COUNTY NEWS, and STILLWATER COUNTY NEWS); RAVALLI REPUBLIC; and THE SOCIETY OF PROFESSIONAL JOURNALISTS, MONTANA CHAPTER, Plaintiffs and Appellants, v. THE MONTANA SENATE REPUBLICAN CAUCUS; THE MONTANA SENATE DEMOCRATIC CAUCUS; THE MONTANA HOUSE OF REPRESENTATIVES REPUBLICAN CAUCUS; and THE MONTANA HOUSE OF REPRESENTATIVES DEMOCRATIC CAUCUS, Defendants and Respondents.
    No. 96-640.
    Heard October 23, 1997.
    Submitted October 30, 1997.
    Decided December 18, 1997.
    54 St.Rep. 1360.
    286 Mont. 172.
    951 P.2d 65.

      For Appellant: James P. Reynolds, Reynolds, Motl and Sherwood, Helena.
    For Respondent: Stanley T. Kaleczyc, Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the District Court’s November 16, 1995 order dismissing the Appellants’ complaint. The trial court held that the Respondent Senate and House Republican and Democratic party in-session caucuses were not persons within the meaning of Rule 4A, M.R.Civ.P, and that, therefore, the court did not have jurisdiction over them. Subsequently, on July 12, 1996, the court’s order was converted into one for summary judgment, and this appeal followed. We reverse and remand for further proceedings.

Issue

We address but one issue in this appeal: Under Montana law, are the Senate and House caucuses of the Republican and Democratic parties “persons” within the meaning of Rule 4A, M.R.Civ.R? We answer this question in the affirmative.

Background

The Appellants (Plaintiffs in the underlying action) are twenty-two Montana newspapers, television stations and trade and professional news organizations, hereafter collectively referred to as the media. The Respondents (Defendants in the underlying action) are the State Senate and House caucuses of the Republican and Democratic parties. The Respondents are hereafter collectively referred to as the caucuses.

The media filed their complaint on February 17, 1995, alleging that, for a variety of reasons, the caucuses are public bodies or agencies of state government performing public functions in public facilities at public expense. The media further alleged that the proceedings and records of the caucuses were closed to the media and to the public in violation of Montana’s Open Meetings law, Title 2, chapter 3, part 2, MCA; in violation of Montana’s Public Records law, Title 2, chapter 6, part 1, MCA; and in violation of the Right-To-Know provision of Article II, Section 9 of the Montana Constitution. The media prayed for declaratory and injunctive relief and for costs and attorney fees.

Four legislators serving in the 1995 Legislature, Senate Majority Leader John Harp, Senate Minority Leader Mike Halligan, Speaker of the House John Mercer and then-House Minority Leader Ray Peck, were served with process. These four legislators entered a special appearance, by counsel, without admitting that they were the proper persons to receive service of process on behalf of the caucuses. In due course they filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), M.R.Civ.P., contending, among other things, that the caucuses were not “persons” within the meaning of Rule 4, M.R.Civ.P., and that the caucuses were, therefore, not subject to the jurisdiction of the court.

Relying on our decision in Common Cause v. Statutory Committee (1994), 263 Mont. 324, 868 P.2d 604, the District Court effectively differentiated between the pre-session and the in-session party caucuses. The court held that, because pre-session caucuses are required by § 5-2-201, MCA, to meet and because they clearly perform a governmental or public purpose these caucuses are subject to the Open Meetings law. On the other hand, the court concluded that while the party caucuses are not the legislature nor are they an official body or committee of the legislature, the caucuses are “a ‘de facto’ part of the legislative process where important public policy issues are discussed by legislators.” The court then ruled that the caucuses are not “persons” within the meaning of Rule 4A, M.R.Civ.R, since the caucuses are neither unincorporated associations nor groups of two or more persons having a joint or common interest nor any other legal or commercial entity. Rather, the court concluded that the party caucuses are unofficial gatherings of legislators and not separate legal entities, and, therefore, they are not persons within the meaning of Rule 4A. On this rationale, the District Court denied the motion to dismiss the media’s complaint as to the pre-session caucuses, but granted dismissal, and later converted that to summary judgment, as to the in-session caucuses.

The media timely appealed the court’s grant of summary judgment dismissing their complaint as to the in-session caucuses. No cross-appeal was filed by the caucuses, however, as to the court’s ruling on the pre-session caucuses.

Standard of Review

As stated above, the court dismissed the media’s complaint for failure to state a claim and then converted the order of dismissal into one for summary judgment concluding that it lacked jurisdiction because the in-session caucuses are not persons within the meaning of Rule 4A, M.R.Civ.R Under these circumstances our review of the trial court’s decision, de novo, is clearly mandated.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Moreover, a motion to dismiss for failure to state a claim under Rule 12(b)(6), M.R.Civ.R, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true. The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law which we review de novo. Common Cause of Montana v. Argenbright (1996), 276 Mont. 382, 386, 917 P.2d 425, 427 (citations omitted).

In like manner, a court’s determination of its jurisdiction is a conclusion of law over which our review is plenary. See Lurie v. 8182 Maryland Associates (1997), [282 Mont. 455], 938 P.2d 676, 678;Agri West v. Koyama Farms, Inc. (1997), 282 Mont. 167, 933 P.2d 808, 810; Bird v. Hiller (1995), 270 Mont. 467, 470, 892 P.2d 931, 932. Finally, as to motions granting summary judgment, it is well-settled that we review a district court’s grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by that court. Ash Grove Cement Co. v. Jefferson County (1997), [283 Mont. 486], 943 P.2d 85, 88 (citation omitted).

Discussion

The media argue, and we agree, that the word “caucus” has two related, yet distinct meanings. On the one hand a “caucus” can be a group of persons sharing common interests and attempting to influence the decision of a larger group. In this context a caucus is “[a] group within a legislative or decision-making body seeking to represent a specific interest or influence a particular area of policy,” American Heritage Dictionary 304 (3d ed. 1992), or “a group of people united to promote an agreed-upon cause,” Merriam-Webster’s Collegiate Dictionary 182 (10th ed. 1997).

On the other hand, “caucus” can refer to the meetings of such groups. Under this usage of the word, caucus is variously defined as “a closed meeting of a group of persons belonging to the same political party or faction [usually] to select candidates or to decide on policy,” Merriam-Webster’s Collegiate Dictionary 182 (10th ed. 1997); “[a] meeting of the legal voters of any political party assembled for the purpose of choosing delegates or for the nomination of candidates for office,” Black’s Law Dictionary 220 (6th ed. 1990); or “[a] closed meeting of party members within a legislative body to decide on questions of policy or leadership,” American Heritage Dictionary 304 (3d ed. 1992).

In their complaint, the media carefully differentiated between the two definitions, focusing their claims for purposes of this case on the first definition of caucus. Specifically, the media defined each of the four defendant caucuses as consisting of state senators or representatives elected, respectively, to the state Senate or House on either the Republican or Democratic party ticket.

In determining that the media’s complaint should be dismissed, the District Court, however, effectively adopted the argument of the caucuses and rejected the first definition — i.e., that a caucus is a group of people sharing a common interest and seeking to promote a specific interest, policy or cause — and, instead, narrowed its determination to the second definition — i.e., that party caucuses are unofficial gatherings of legislators and not separate legal entities. While the court grounded its ruling on our decision in Common Cause v. Statutory Committee (1994), 263 Mont. 324, 868 P.2d 604, we did not address in that case the issue presented here, and, accordingly, we do not find our decision dispositive as to this issue.

If the “group” definition of caucus (as opposed to the “gathering” or “meeting” definition) is valid — and we have been cited to no authority that would lead us to the conclusion that it is not — then, the question simply becomes whether the caucuses as “groups of persons sharing a common interest” fit within the definition of “persons” within the meaning of Rule 4A, M.R.Civ.P. We conclude that they do.

At the outset, we note that while the parties have injected into this appeal arguments which more properly go to the underlying merits of the case, in actuality, the narrow question of law at issue here is not particularly complex. We conclude that this legal issue is resolved on the plain language of Rule 4A itself and that we need not resort to the various out-of-state authorities cited in the briefs.

When we are called upon to interpret the Rules of Civil Procedure, we utilize applicable rules of statutory construction. Thus in our interpretation of the Rules, we are required

simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted [and] [w]here there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Busch v. Atkinson (1996), 278 Mont. 478, 483-84, 925 P.2d 874, 877 (citations omitted).

Rule 4A, M.R.Civ.P, defines “person” as follows:

As used in this rule, the word “person,” whether or not a citizen or resident of this state and whether or not organized under the laws of this state, includes an individual whether operating in the individual’s own name or under a trade name; an individual’s agent or personal representative; a corporation; a business trust; an estate; a trust; a partnership; an unincorporated association; and any two or more persons having a joint or common interest or any other legal or commercial entity. [Emphasis added].

Clearly, a party caucus, whether defined as a group or a gathering, is not an individual, a corporation, a business trust, an estate, a trust or a partnership within the meaning of Rule 4A. Neither the media nor the caucuses argue to the contrary. If a party caucus is a person within the meaning of Rule 4A, then the caucus must be either an “unincorporated association” or “any two or more persons having a joint or common interest.” We hold that the caucuses fit within both definitions.

In their brief to the trial court, while focusing on the “gathering” or “meeting” definition of caucus, the caucuses, nevertheless, defined themselves and their activities thus:

These caucuses are meetings of members of a political party who periodically come together to discuss matters of common interest, including matters related to their respective party meetings, their party’s platform, elections and election related activities, and personal matters, as well as issues generally related to substantive or procedural matters at the Montana legislature, including matters previously proposed or considered, matters which are currently pending, and matters which may be proposed in the future.
These meetings provide an opportunity for individuals who are elected to the Montana Senate or House and share a common political philosophy by which they are known and elected, which philosophy is identified by their political party affiliation, to gather together, think out loud, formulate ideas, and discuss among other things, various political, social, and public policy issues in private. This ability to associate and to discuss political ends in a private setting is an integral part of the tree flow of political thought and ideas between and among members of the respective political parties who are elected to the legislature.

While the term “unincorporated association” is not defined in either Montana’s statutory or case law, Black’s Law Dictionary defines this term as, among other things, a “[v]oluntary group of persons, without a charter, formed by mutual consent for [the] purpose of promoting [a] common enterprise or prosecuting [a] common objective.” Black’s Law Dictionary 1531 (6th ed. 1990). Comparing how the caucuses define themselves and their activities with this definition of “unincorporated association,” it is evident that the caucuses fit neatly within its parameters. The caucuses are voluntary, they are a group of persons, they do not have a charter, they are formed by mutual consent, and they meet to discuss and promote common objectives.

The caucuses, nevertheless, argue that an “unincorporated association” is not an entity and has no status distinct from the persons composing it, but is rather a body of individuals acting together for the prosecution of a common enterprise without a corporate charter but upon methods and forms used by a corporation. The short answer to this argument is that nothing in Rule 4A, in Montana’s statutes or in our prior case law, so restrictively defines an unincorporated association for purposes of determining whether it is subject to the jurisdiction of this state’s courts and to service of process. Regardless of whether the powers and authority of an unincorporated association may be limited in one way or another by other specific statutes, rules or by the case law, we are not persuaded that any good purpose is served by so narrowly defining the term unincorporated association in the context of determining personal jurisdiction under our Rules of Civil Procedure. And, we are not cited to any compelling authority that would dictate a conclusion to the contrary.

More importantly, restricting those who can be sued in Montana’s courts by judicially adopting definitional restrictions not found in the plain, broad language of our statutes and procedural rules flies directly in the face of the open courts provision of Article II, Section 16 of the Montana Constitution. Certainly, it will be of little consolation to the Montana citizen or business injured by a body of individuals acting together for the prosecution of a common enterprise without a corporate charter that such citizen or business is deprived of access to our courts and to a remedy for the wrong done simply because this body perpetrated its mischief without methods and forms used by a corporation. Worse, the likely consequence of our adopting such a narrow definition of unincorporated association under Rule 4A would be to effectively immunize the myriad unincorporated hate groups and paramilitary organizations in this state— many of which pride themselves on their lack of formality and structure — from suit in our civil courts. We refuse to so lightly create such a safe harbor for tortfeasors and other wrongdoers. Accordingly, we hold that the caucuses are persons within the meaning of Rule 4A by reason of their being unincorporated associations.

The media also maintain that the caucuses are persons for Rule 4A purposes because these bodies are “two or more persons having a joint or common interest.” As to this argument we need pause only momentarily. Referring back to the manner in which the caucuses have defined themselves and their activities, and for the same reasons that we rejected a narrowing interpretation of the term unincorporated association, we likewise conclude that the caucuses also fit within this definition of “person” under Rule 4A. Without question, the caucuses are comprised of two or more persons; they have a joint or common interest; and there is no requirement in our statutes, rules or case law that limits this definition to only legal entities for purposes of determining the jurisdiction of our courts and for service of process. We hold that the caucuses are “persons” within the meaning of Rule 4A by reason of their being “two or more persons having a joint or common interest.”

Finally, having decided the issue on appeal on the basis of the plain language of Rule 4A, there remains to be mentioned, however, one further point that lends support to our analysis. As mentioned above, the District Court refused to dismiss the media’s complaint as to the pre-session caucuses but did grant dismissal of the complaint as to the in-session caucuses. In doing so, the court effectively held that the pre-session caucuses are persons for Rule 4A purposes — for if they are not, then the pre-session caucuses would be no more subject to suit, subject to the jurisdiction of the court and subject to service of process than the in-session caucuses. This ruling — that the pre-session caucuses are persons, but that the in-session caucuses are not — makes little sense.

While the pre-session caucuses have certain statutorily defined duties under §§ 5-2-201, 202 and 203, MCA, there is nothing in these statutes that supports a conclusion that at twelve noon on the day appointed for the meeting of a regular session of the legislature the caucuses suddenly cease being or doing what they were and did before that magic hour. In fact, the law directs the caucuses to perform certain duties during the session as well. See § 5-2-221(4), MCA (the majority and minority floor leaders and the majority and minority whips of the Senate and the House are elected by their respective caucuses).

Importantly, however, it is not the statutory duties that cause the pre-session caucuses to be persons within the meaning of Rule 4A. Rather, it is because these caucuses are groups of persons sharing common interests and attempting to influence the decision of a larger group; groups within a legislative or decision-making body seeking to represent a specific interest or influence a particular area of policy; and groups of people united to promote an agreed-upon cause, that brings them within the definitions of “unincorporated association” and “two or more persons having a joint or common interest” and which, thus, renders them persons within the meaning of Rule 4A. Likewise, and for these same reasons, the in-session caucuses are persons for Rule 4A purposes as well.

We hold that the Republican and Democratic party Senate and House caucuses — the Respondents in this appeal and the Defendants in the underlying action — are persons within the meaning of Rule 4A, M.R.Civ.P. Accordingly, we reverse the order of dismissal and order granting summary judgment entered by the District Court, and we remand for further proceedings.

Reversed and remanded.

JUSTICES HUNT, REGNIER, TRIEWEILER and LEAPHART concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion because, in my view, the Court has adopted and applied the wrong definition of “caucus.” Thus, while I also disagree with portions of the Court’s discussion about the Rule 4A, M.R.Civ.P, terms “unincorporated association” and “any two or more persons having a joint or common interest,” I would not reach those issues because applying the correct definition of “caucus” precludes this case from coming within the purview of Rule 4A’s listing of “persons” subject to suit in Montana.

The Court states, and correctly so, that the word “caucus” has two separate and distinct meanings. The first is the “group of persons” definition; the second is the “meeting” or “gathering” definition. The Court then implicitly chooses the “group” definition, apparently on two bases: first, that the media said it was so in its complaint; and second, that no authority had been cited to support the conclusion that the “group” definition is not valid. I disagree.

With regard to the complaint, I agree that the media carefully phrased its allegations to meet the “group” definition of caucus. The caucuses just as carefully phrased their pleadings and briefs to satisfy the “meeting” definition, as the Court’s quote of the caucuses’ self-definition points out. The question before us is not, however, one of “artful pleading.” The question is which definition of “caucus” applies here. I submit that Montana statutes provide the dispositive answer and thus preclude the Court from merely choosing among competing definitions.

Caucuses are referenced in statutes concerning the organization of the Montana Legislature. Section 5-2-201, MCA, provides for presession caucuses via its mandate that, by December 1 of each year in which legislative elections are held, the parties of each legislative house “shall hold a presession caucus....” (Emphasis added.) The purposes of “the caucus” also are specified. It is clear that “the parties” cannot “hold” a “group of persons.” Thus, I submit that this statute clearly expresses the legislature’s intent that a “caucus” is a meeting or a gathering, rather than a group of persons.

Section 5-2-202, MCA, also references caucuses and further buttresses the conclusion that, in Montana, a legislative caucus is a meeting or gathering rather than a group of persons. That statute addresses legislators nominated to leadership positions “during the presession caucus.” It simply is not reasonable to interpret the language in § 5-2-202, MCA, as addressing legislators nominated during the presession “group of persons.”

I acknowledge that the quoted statutes address only presession caucuses and that the issues before us relate to caucuses held during legislative sessions. It is my view, however, that the legislature has provided the applicable definition of caucuses via these statutes and that this Court cannot properly just choose the alternative definition for purposes of this case.

Because application of the proper definition renders a caucus a “meeting,” it is clear that a “meeting” cannot be sued. As a result, it is unnecessary to reach the question of whether a caucus is a “person” — that is, an unincorporated association or two or more persons having a joint or common interest — under Rule 4A.

CHIEF JUSTICE TURNAGE

dissenting.

I join in the dissent of Justice Karla M. Gray.

I further respectfully dissent to the majority opinion holding that a legislative caucus is an “unincorporated association.” This holding is totally unnecessary to the majority holding that, for the purpose of Rule 4A, M.R.Civ.P, a caucus is “any two or more persons having a joint or common interest.”

Notwithstanding that Rule 4A, in its attempt to define persons for jurisdiction and service of process, has included in a long list of recognizable legal entities “an unincorporated association,” such inclusion is neither logical or practical for the purpose of jurisdiction and service of process. The inclusion of“unincorporated associations” should be deleted from Rule 4A.

Rule 4D(e), M.R.Civ.P., requires service of process upon “an incorporated association” by delivery of a copy of the summons and complaint to an office, director, superintendent, managing or general agent or partner or associate or with a person in charge of such office or by delivery to the registered agent or other agent designated by statute. Undoubtedly in Montana there are hundreds of “unincorporated associations,” none of which have any structure that would allow service, as a practical matter, under Rule 4D(e), ranging from volunteers who participate in such worthwhile endeavors as gray ladies, hospice volunteers, community watch, altar societies, bridge clubs and many other such “associations” unincorporated and without officers, agents, or offices.

Further, in the not unlikely event such entities are named as a party in litigation and damages are awarded, what defendants must pay the judgment? Upon whose property would a judgment lien attach? In the event the “association” should be awarded judgment, who shares in the award and who can lawfully satisfy the judgment of record?

If the majority fears that some one or some association would escape liability for a tort, they need have no fear — some real live person or persons must by necessity have committed the wrong, can be identified, and properly named a party.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JONATHAN COLLARD, Defendant and Appellant.
    No. 96-646.
    Submitted on Briefs May 8, 1997.
    Decided December 18, 1997.
    54 St.Rep. 1366.
    286 Mont. 185.
    951 P.2d 56.

      For Appellant: Daniel P. Buckley, Berg, Lilly, Andriolo & Tollefsen, Bozeman.

      For Respondent: Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General; Marty Lambert, Gallatin County Attorney, Jane Mersen, Deputy Gallatin County Attorney, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

Jonathan Collard was charged in the District Court for the Eighteenth Judicial District, Gallatin County, with one count of robbery, a felony, and one count of criminal possession of dangerous drugs, a misdemeanor. After his pretrial motions to suppress physical evidence and his confession were denied, he pleaded guilty to both counts reserving his right to appeal the denial of his motions. We affirm.

We address the following issues on appeal:

1. Did the District Court err in concluding that Officer Megargel had a particularized suspicion to stop Collard?
2. Did the District Court err in denying Collard’s motion to suppress physical evidence seized during a warrantless search?
3. Did the District Court err in denying Collard’s motion to suppress his confession?

Factual and Procedural Background

In the early morning hours of November 29, 1995, the night clerk at Town Pump West in Bozeman reported a robbery. The clerk reported that the suspect was armed with a knife and that he had fled on foot. Officer Greg Megargel responded to the scene. A few blocks from the Town Pump, Officer Megargel noticed a vehicle exiting a nearby trailer park “in a hurried manner.” Officer Megargel testified that he thought this suspicious as it was the only vehicle moving about at that hour. As Officer Megargel caught up to the vehicle, he noticed that it had out-of-state plates so he requested that dispatch run a vehicle registration check.

Officer Megargel flashed his high beams on the vehicle to determine the number of occupants. He contends that just after he flashed his high beams, the vehicle turned a comer and pulled over to the side of the road unexpectedly. Collard, the driver of the vehicle, contends that he pulled over because he saw the yellow lights on top of the patrol car come on and he thought that the officer was signaling him to stop. Officer Megargel maintains that he had not turned his yellow top lights on or in any other way signaled Collard to pull over.

After Collard stopped, Officer Megargel pulled in behind him, got out of his patrol car and approached the vehicle. He noticed that Collard was sweating even though it was cold out, that he had splashes of mud on his sweatpants, and that his boots were wet. Officer Megargel asked Collard to step from the vehicle and then called dispatch for a confirmation of the description of the robber. The robber was described as wearing a blue sweatshirt, blue sweatpants, a bandana, ski goggles and black and white shoes. Collard was wearing an orange parka, white t-shirt, blue sweatpants, a blue hat, and two-toned brown Sorel boots.

Officer Megargel pat searched Collard for weapons. There is a dispute as to how many pat searches were conducted prior to placing Collard under arrest. Nevertheless, during one of these pat searches, Officer Megargel felt an object in the leg of Collard’s sweatpants that he determined to be a pair of ski goggles. Officer Megargel testified that he knew immediately that the object was ski goggles. He stated that he only had to touch the object for “a couple seconds” to recognize what it was. After discovering the ski goggles, Officer Megargel placed Collard under arrest.

Collard was transported to the Bozeman Police Department. During a tape recorded interview conducted by Detective Bill Dove, Collard was advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. During this taped interview, Collard indicated that he understood his rights and, after signing a waiver of those rights, he confessed to committing the robbery.

After confessing to the robbery, Collard was taken to a field near the Town Pump where he claimed that he had dropped the knife that he used in the robbery. Officers searched the field but did not find the knife. Upon returning to the police station, Collard voluntarily filled out a handwritten confession before being taken to justice court for an initial appearance.

On December 11, 1995, Collard was charged with one count of robbery, a felony, in violation of § 45-5-401, MCA, and one count of criminal possession of dangerous drugs, a misdemeanor, in violation of § 45-9-102, MCA. He pleaded not guilty. The District Court originally set April 22,1996, as the trial date, however, the matter was continued several times and trial was finally reset for August 14,1996.

On August 9, 1996, Collard filed a motion to once again continue the trial date. This motion was subsequently denied by the District Court. On August 12, 1996, Collard filed combined motions to suppress physical evidence and his confession. He contended that the evidence was obtained from an illegal detention and search. He also contended that his confession was illegally obtained because prior to the taped interview in which he confessed, he was questioned without being advised of his Miranda rights.

On the day set for trial, the District Court allowed the State and Collard to voir dire and select the jury. The court then dismissed the jury for the day and conducted a hearing on Collard’s motions to suppress. After considering the evidence and legal arguments presented at the hearing, the District Court entered findings of fact, conclusions of law and order denying Collard’s motion to suppress physical evidence. The following day, Collard withdrew his not guilty plea and pleaded guilty to both counts, reserving his right to appeal the denial of his pre-trial motions. The jury was dismissed without being sworn in.

The District Court’s August 14,1996 order did not specifically address Collard’s motion to suppress his confession. Nevertheless, the court stated at the change of plea hearing on August 15, 1996, that it was denying the motion to suppress the confession on the grounds that Collard had waived his Miranda rights after full explanation.

On September 26, 1996, the District Court sentenced Collard to three years with the Department of Corrections on the robbery conviction and an additional three years with the Department of Corrections for the use of a weapon. The sentences were to run consecutively. The court also sentenced Collard to serve six months in the county jail on the criminal possession of dangerous drugs conviction. This latter sentence was to run concurrently to the other sentences.

Collard now appeals the District Court’s order denying his motions to suppress his confession and physical evidence.

Standard of Review

We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Siegal (1997), [281 Mont. 250], 934 P.2d 176, 180 (citing State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021; State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).

Issue 1.

Did the District Court err in concluding that Officer Megargel had a particularized suspicion to stop Collard?

Collard contended in his motion to suppress and now on appeal that he was illegally detained and all physical evidence resulting from the search based on that illegal detention must be suppressed. The District Court denied Collard’s motion to suppress on the basis that the detention and subsequent search were proper as Officer Megargel had a particularized suspicion that Collard was involved in the robbery at the Town Pump.

Although warrantless searches are considered per se unreasonable under the Fourth Amendment of the United States Constitution, both federal and state law acknowledge certain specific exceptions to the warrant requirement. State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113 (citing Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619). One such exception is the investigatory stop.

In 1968, the United States Supreme Court held that a law enforcement officer may stop an individual to investigate possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889. However, such an investigatory stop is only justified when it is based upon specific, articulable facts from which the officer could reasonably infer that the individual is engaged in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Thirteen years later, in United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, the Supreme Court provided further guidance to determine when an officer has sufficient grounds to make an investigatory stop. In Cortez, the Supreme Court stated that for an officer to make an investigatory stop, the officer must have a particularized suspicion, based upon objective data and the totality of the circumstances, from which an experienced officer can infer that the detained person is, has been or is about to be, engaged in wrongdoing. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695.

We adopted this standard in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, and set forth a two-part test to determine whether sufficient particularized suspicion exists to justify an investigatory stop. We stated in Gopher that the State’s burden has two elements: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the person is, or has been, engaged in wrongdoing or was a witness to criminal activity. Gopher, 631 P.2d at 296.

The 1991 Legislature amended Montana’s investigative stop statute to reflect the standard set forth in Gopher. This statute now provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

Section 46-5-401, MCA (emphasis added). “[A] ‘particularized suspicion’ does not require certainty on the part of the law enforcement officer.” State v. Morsette (1982), 201 Mont. 233, 241, 654 P.2d 503, 507 (citing Cortez, 449 U.S. at 418, 101 S.Ct. at 695). See also Rupp v. State, Department of Justice (1996), 279 Mont. 247, 251, 927 P.2d 1, 3 (“absolute certainty is not required”). Moreover, this Court has continually stated that whether a particularized suspicion exists is a question of fact which is dependent on the totality of the circumstances. State v. Broken Rope (1996), 278 Mont. 427, 431, 925 P.2d 1157, 1159 (citing Anderson v. State Dept. of Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214; State v. Reynolds (1995), 272 Mont. 46, 50, 899 P.2d 540, 542-43).

Collard contends that in this case, the investigatory stop was unjustified because Officer Megargel was not sufficiently qualified as a trained law enforcement officer since he had only been on the force for a short time. In Morsette, we held that a deputy who had only been on the force a short time, but who had taken the basic training courses at the Montana Law Enforcement Academy and had worked on other burglary cases, was sufficiently qualified as a trained law enforcement officer to form a particularized suspicion as to the defendant in that case. Morsette, 654 P.2d at 507.

Even though Officer Megargel had been on the Bozeman police force for only one year at the time of the robbery, he had attended the Montana Law Enforcement Academy and had spent three months in a field-training program. In addition, Officer Megargel testified at the suppression hearing that he had been involved in other major crimes investigations before this incident. Therefore, we hold that Officer Megargel was sufficiently qualified as a trained law enforcement officer to form a particularized suspicion and to make an investigatory stop of this nature.

Collard also contends that the investigatory stop was unjustified because it was not based on objective facts. We disagree. Officer Megargel’s experience and training led Mm to believe that Collard may have been connected to the robbery at the Town Pump based on the following facts: the knowledge that a crime had just been committed by a male acting alone; that Collard was first observed only a few blocks from the scene of that crime; that Collard’s veMcle wás the only veMcle observed moving about just after the crime had been committed; that Collard was the oMy person in the veMcle; that Collard was driving in “a hurried manner” away from the scene of the crime; and that Collard surprised Officer Megargel by puffing over unexpectedly.

WMle Collard contends that he was not moving in “a hurried manner” and that he pulled over because Officer Megargel signaled him to stop, the District Court found Officer Megargel’s version more credible and concluded that he did have a particularized suspicion to stop Collard. “The credibility of witnesses and the weight to be assigned to their testimony are to be determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal.” State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336 (citing State v. Green (1984), 212 Mont. 20, 23, 685 P.2d 370, 371-72).

Accordingly, based on the objective data and the totality of the circumstances, we hold that the District Court did not err M concluding that Officer Megargel had a particularized suspicion to stop Collard.

Issue 2.

Did the District Court err in denying Collard’s motion to suppress physical evidence seized during a warrantless search?

Since we have already determined that Officer Megargel had a particularized suspicion that Collard may have committed an offense, it follows that, based on prior statutory and case law, Officer Megargel also had the authority to frisk Collard for weapons. The Urnted States Supreme Court held in Terry that, in the course of investigating criminal behavior, if the officer has reason to believe that the Mdividual may be armed and dangerous and nothing in the initial stages of the encounter serves to dispel Ms reasonable fear for Ms own or others’ safety, the officer, for Ms own protection and that of others in the area, is entitled to conduct “a carefully limited search of the outer clotMng of such persons in an attempt to discover weapons which might be used to assault him.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85.

In addition, Montana statutory law gives law enforcement officers the authority to frisk suspects under certain circumstances.

Stop and frisk. A peace officer who has lawfully stopped a person under 46-5-401 or this section:
(1) may frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present; ...

Section 46-5-402, MCA.

Even so, Collard argues that there was no reasonable basis for Officer Megargel to frisk him for weapons as Officer Megargel had no reason to believe that Collard posed a threat. On the contrary, the clerk at the Town Pump had reported that the robber was armed with a knife. In addition, as Officer Megargel approached Collard’s vehicle, he noticed that Collard was sweating, that he had splashes of mud on his sweatpants, and that his boots were wet. These observations, rather than serving to dispel his reasonable fear for his own or others’ safety as pointed out in Terry, gave Officer Megargel reasonable cause to believe that Collard was the person who had just robbed the Town Pump and that he might be armed with a knife. On that basis, we hold that Officer Megargel was justified in conducting a pat search of Collard’s person.

We next determine whether Officer Megargel exceeded the permissible scope of that search and whether the warrantless seizure of the ski goggles was proper. The State argues that the seizure of the ski goggles was justified under a corollary to the “plain view” doctrine known as the “plain feel” or “plain touch” doctrine and espoused by the United States Supreme Court in Minnesota v. Dickerson (1993), 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334. Although this Court has had occasion to discuss Dickerson and the “plain feel” doctrine, State v. Stubbs (1995), 270 Mont. 364, 892 P.2d 547, overruled by State v. Loh (1996), 275 Mont. 460, 914 P.2d 592, we did not adopt that doctrine at that time as the facts in Stubbs warranted analysis under the previously adopted “plain view” doctrine instead. The facts in the instant case, however, lend themselves more readily to an analysis under the “plain feel” doctrine and we take this opportunity to evaluate this doctrine and its possible application.

We begin with a summary of the “plain view” doctrine. Under the “plain view” doctrine which this Court first adopted in State v. Gallagher (1973), 162 Mont. 155, 509 P.2d 852, and later modified in State v. Loh (1996), 275 Mont. 460, 914 P.2d 592, law enforcement officers, under certain circumstances, may seize evidence in plain view without a warrant. Loh, 914 P.2d at 597. Basing our decision in Loh on the United States Supreme Court’s decision in Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112, we held that two conditions must be satisfied to justify a warrantless seizure of incriminating evidence in plain view:

First, not only must the item be in plain view; its incriminating character must also be “immediately apparent.” .... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

Loh, 914 P.2d at 598 (citing Horton, 496 U.S. at 136-37, 110 S.Ct. at 2308). The idea behind the “plain view” doctrine is that

[i]f an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. A seizure of the article, however, would obviously invade the owner’s possessory interest.

Loh, 914 P.2d at 597 (citing Horton, 496 U.S. at 133-34, 110 S.Ct. at 2306).

In 1993, the United States Supreme Court, articulated the following corollary to the “plain view” doctrine:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Dickerson, 508 U.S. at 375-76, 113 S.Ct. at 2137.

In Dickerson, during a Terry stop and frisk, a police officer felt a small lump in defendant’s jacket pocket. After sliding his fingers over the lump and squeezing it, the officer believed it to be crack cocaine wrapped in cellophane. Thus, the officer reached into defendant’s pocket and retrieved the lump which proved to be a small plastic bag containing cocaine. Defendant moved the trial court to suppress this evidence. Dickerson, 508 U.S. at 368-69, 113 S.Ct. at 2133-34.

The Supreme Court determined in Dickerson that although the officer was lawfully in a position to feel the lump in defendant’s pocket, the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was cocaine only by squeezing the object and otherwise manipulating it. Since the incriminating character of the object was not immediately apparent, the officer exceeded the permissible scope of a search under Terry. Hence, the Supreme Court held that this further search of defendant’s pocket was constitutionally invalid and the seizure of the cocaine was unconstitutional. Dickerson, 508 U.S. at 379, 113 S.Ct. at 2139.

The reasons which led the Supreme Court to reject application of the “plain feel” or “plain touch” doctrine in Dickerson are not present in the case at bar, however. Rather, the facts of this case fit neatly within the elements of this doctrine as articulated by the Supreme Court and, thus, justify its adoption and application in upholding Officer Megargel’s seizure of the ski goggles. Specifically, Officer Megargel properly engaged Collard in an investigatory stop based upon a particularized suspicion that Collard was involved in the Town Pump robbery; Officer Megargel then properly conducted a pat search for the knife that was reportedly used in the robbery; and, finally, in the conduct of this pat search, Officer Megargel felt an object whose contour or mass made it readily apparent that ski goggles, which the suspect was reportedly wearing were concealed on Collard’s person.

Nevertheless, Collard contends that because Officer Megargel had to touch the ski goggles for a few seconds, their identity was not immediately apparent to him, hence they were wrongfully seized and should have been suppressed. However, the evidence does not show that Officer Megargel spent a considerable amount of time squeezing and manipulating the object as did the officer in Dickerson. On the contrary, Officer Megargel testified that he knew immediately that the object in the leg of Collard’s sweat pants was a pair of ski goggles. He stated that he only had to touch the object “for a couple seconds” to recognize what it was. Moreover, unlike the lump of cocaine in the defendant’s pocket in Dickerson, a pair of ski goggles has a shape that could be immediately identifiable when touched.

Accordingly, we hold that the District Court did not err in denying Collard’s motion to suppress physical evidence seized during a warrantless search.

Issue 3.

Did the District Court err in denying Collard’s motion to suppress his confession?

Section 46-13-301, MCA, allows a defendant to move to suppress a confession on the grounds that the defendant involuntarily gave the confession. The voluntariness of a confession is a factual question which must be decided based upon the totality of the circumstances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citing State v. Allies (1979), 186 Mont. 99, 111, 606 P.2d. 1043, 1050). The following factors are considered in determining the voluntariness of a confession: the defendant’s age and level of education; the officer’s interrogation technique; whether the officer advised the defendant of his of her Miranda rights; the defendant’s prior experience with the criminal justice system; the defendant’s general background and experience; and the defendant’s demeanor, coherence, articulateness, and capacity to make full use of his or her faculties. State v. Loh (1996), 275 Mont. 460, 475-76, 914 P.2d 592, 601-02 (citing State v. Hermes (1995), 273 Mont. 446, 449-50, 904 P.2d 587, 589; State v. Shaver (1988), 233 Mont. 438, 444, 760 P.2d 1230, 1233).

Taking these factors in order and analyzing them to the facts in the case before us demonstrates that Collard’s confession was made voluntarily. First, Collard was twenty years old at the time of the robbery and had attended at least one semester of college. Second, a review of the transcript of the taped interview shows that Detective Dove’s interrogation technique was a simple question-and-answer format. His demeanor does not appear to be coercive or threatening in any way. Third, the transcript shows that Detective Dove did advise Collard of his Miranda rights. Fourth, Collard apparently had some experience with the criminal justice system as the evidence showed that he previously had been fined by a court for some other misdeed. In addition, when he was stopped by Officer Megargel, Collard allowed Officer Megargel to look under a shirt on the passenger seat. However, Collard told Officer Megargel that “you can’t search anywhere else because I know my rights.” Lastly, Collard’s answers to Detective Dove’s questions and the questions Collard asked about the charges against him, show that Collard was coherent, articulate, and in full use of his faculties when he confessed to the robbery.

Since Collard’s confession was clearly voluntary, his only means of having the confession suppressed is to claim that prior to the taped interview in which he was advised of his Miranda rights, an unrecorded, un-Mirandized interview took place. Collard contends that this pre-interview occurred when Detective Dove took Collard to another room for a cigarette break. Thus, Collard argues that the taped interview in which he confessed to the robbery and his subsequent written confession are inadmissible as they are fruits of this first unrecorded, un-Mirandized interview.

At the hearing on Collard’s motion to suppress, Detective Dove unequivocally and repeatedly denied that there had been any pre-interview. He testified that Collard either “doesn’t recall correctly or he is lying” because the cigarette break occurred after the taped interview in which Collard was advised of his Miranda rights and not before.

Contrary to Collard’s allegations, there is no evidence that an un-Mirandized, unrecorded interview occurred between Collard and Detective Dove other than Collard’s contentions that statements made by Detective Dove during the taped interview prove that there was a prior interview. To that end, Collard points out that Detective Dove, during the taped interview, stated: “Once we start getting into some of these questions again ...” Collard contends that, by this statement, Detective Dove was referring to questions he asked during the pre-interview. However, Detective Dove testified that when he made that statement, he was referring to a point earlier in the taped interview when he mentioned to Collard what types of questions he would be asking.

A review of the transcript of the taped interview shows that Detective Dove did indeed mention in the initial portion of the interview some of the questions he wanted to ask Collard. For example, after reading Collard his rights, Detective Dove stated: “You don’t have to explain any of the questions we have such as, you know, what in the world were you doing trying to pay off fines, trying to buy a ski pass or just trying to buy some party money.” A few moments later, but prior to the statement about questioning “again,” Detective Dove stated that “the biggest questions, like I say is why? You trying to pay off the court fines up here in the jail or what’s going on. If you acted alone, if there was somebody else you were going to pick up ....”

Collard also argues that Detective Dove’s knowledge of the fact that Collard had court fines to pay shows there was a prior conversation. To the contrary, Detective Dove pointed out at the suppression hearing that, prior to interviewing Collard, he had run a criminal history check on Collard and found that he had an outstanding warrant.

We have repeatedly stated that it is within the province of the trial court to determine the credibility of the witnesses and the weight to be given their testimony during a hearing on a motion to suppress and we do not review those determinations. State v. Campbell (1996), 278 Mont. 236, 241, 924 P.2d 1304, 1307 (citing State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 27-28; State v. Grimestad (1979), 183 Mont. 29, 36-37, 598 P.2d 198, 203). Here, the District Court clearly found Detective Dove to be the more credible witness and we will not disturb that determination.

Detective Dove did exactly what we have been encouraging law enforcement officers to do for a number of years, tape record or create an audio-visual record of Miranda warnings and the detainee’s waiver of his or her rights. See State v. Grey (1995), 274 Mont. 206, 907 P.2d 951; State v. Cassell (1996), 280 Mont. 397, 932 P.2d 478. We held in Grey and in Cassell that, although we would not require that an interview be tape recorded, a law enforcement officer’s failure to preserve some tangible record of giving a Miranda warning, along with the detainee’s knowing and intelligent waiver of his or her rights, would be viewed with distrust in the judicial assessment of voluntariness under the totality of circumstances surrounding the confession or admission. Grey, 907 P.2d at 955-56. Here, Detective Dove is deserving of credit for having tape recorded the interview with Collard wherein he advised Collard of his Miranda rights.

Accordingly, we hold that the District Court did not err in denying Collard’s motion to suppress his confession.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, HUNT and GRAY concur.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WESLEY CARTER HUBBEL, Defendant and Appellant.
    No. 96-663.
    Submitted on Briefs June 19, 1997.
    as Modied on Denial of Rehearing February 3, 1998.
    Decided December 18, 1997.
    54 St.Rep. 1373.
    286 Mont. 200.
    951 P.2d 971.

      For Appellant: J. G. Shockley, Victor.
    For Respondent: Joseph P. Mazurek, Attorney General, Pam Collins, Assistant Attorney General; Helena; George Corn, Ravalli County Attorney, Hamilton.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Wesley Carter Hubbel (Hubbel) was charged with aggravated assault, a felony, after an incident in which he shot his wife, Carole Hubbel. He filed a motion to suppress evidence seized at his home during a warrantless search on the ground that it violated his constitutional rights. The District Court for the Twenty-First Judicial District, Ravalli County, denied his motion. A jury subsequently returned a guilty verdict. Hubbel now appeals the denial of his motion to suppress. We affirm in part and reverse in part.

We frame the issues as follows:

1. Was the warrantless search and seizure of evidence on private land leading up to and including the threshold of Hubbel’s residence constitutional?
2. Did the District Court err in holding that Carole Hubbel’s “retroactive consent,” given five months after the police searched and seized evidence inside the Hubbel home, cured an otherwise unconstitutional search and seizure?

FACTUAL AND PROCEDURAL BACKGROUND

During the early hours of November 23, 1995, Hubbel telephoned 9-1-1 to report that he had accidentally shot his wife, Carole Hubbel, and that he was bringing her to Mr. T’s, a convenience store and gas station located in Darby, Montana, to meet an ambulance. Deputy Sheriff Bradford Squires was dispatched to Mr. T’s. Deputy Sheriff Gregory Stewart responded separately as backup.

At Mr. T’s, Squires approached the car driven by Hubbel and saw Carole Hubbel sitting on the passenger side, holding her hand over her neck with blood between her fingers. Hubbel exited the car and walked up to Squires, stating “Arrest me, I just shot my wife. Arrest me, arrest me.” Squires placed Hubbel under arrest.

As Squires escorted Hubbel to his patrol car, Hubbel began spontaneously “babbling,” stating that he accidently shot his wife in their home, although he gave conflicting statements about the circumstances. He also described the weapon used as a .357 pistol loaded with .38 special ammunition, and stated that after the incident he threw the gun towards the bathroom. Squires advised Hubbel of his Miranda rights in accordance with Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Hubbel requested a lawyer. However, he later began “babbling” again and expressed concern for fifteen dogs that he said were in the house.

When Stewart arrived at Mr. T’s, he observed that the car driven by Hubbel was parked in the middle of the public road. He moved it to the side of the road for safety reasons, and in the process saw bloodstains in the passenger’s seat area. He called a wrecker to have the car hauled to storage. By then, Hubbel had been arrested and was seated in Squires’ patrol car. Although Hubbel was rambling and difficult to understand, Stewart heard Hubbel give Squires his address and comment about numerous dogs in the house.

Squires drove Hubbel to the Ravalli County jail, and then went to the hospital where he questioned Carole Hubbel. Although seriously injured, Carole was alert and responsive. Squires then drove back to the jail and asked Hubbel to perform an intoxilizer test, which Hubbel declined. At no time did Squires or anyone else ask either Carole Hubbel or Defendant Hubbel for permission to search their home or property.

In the meantime, Detective Peter Clarkson had arrived at Mr. T’s and took charge of the investigation. Stewart and he drove in their respective cars to the Hubbel residence, which was approximately 15 to 16 miles away, to investigate the scene and preserve evidence.

Clarkson and Stewart arrived at the Hubbel residence at approximately 4:40 a.m. The house was located on property that abutted Highway 93. They pulled into the driveway and parked 70 to 75 feet from the front door, so as not to disturb evidence. The place where they parked appeared to be the common parking area used by both visitors and the Hubbels themselves. The two then proceeded on foot towards the home, which was lit by an outside porch light. As they approached, they could hear dogs barking. Clarkson and Stewart both testified that they had no reason to believe that any other person would be at the home.

They walked to the end of the parking area to a spot that appeared to be where the Hubbels parked the vehicle that Defendant Hubbel had driven to Mr. T’s. Using flashlights, they observed blood in the leaves and grass in that location. They continued walking to the point where the parking area ends and the sidewalk begins, which was about 30 to 35 feet from the front door. From that point, they could see gunshot holes in the front door and they observed that some of the wood was missing from around the glass. Additionally, they saw blood and broken glass on an elevated stoop below the door, as well as a telephone with a severed cord lying next to an overturned chair on the porch. Once on the porch, they also saw a plastic drinking cup of the type commonly used at bars, some ice cubes, and a blood smear on the door.

Clarkson and Stewart entered the house. Inside they saw a loose dog and a kitten. Clarkson locked the dog in the stairwell. Other dogs were already confined in the kitchen. They made a 5 to 10 minute sweep through the ground floor area of the home and found a .357 magnum on the floor where Hubbel had said it would be, overturned furniture, disheveled bedding, blood spatters, bullet holes, and a fresh cigarette bum in the carpet.

They exited the house and discussed whether they should obtain a search warrant prior to reentering the house to conduct a more thorough search. Clarkson telephoned Ravalli County Sheriff Jay Printz, who for undisclosed reasons determined they would not seek one.

Squires then arrived with a camera that Clarkson had requested and the three officers at the scene, Squires, Clarkson and Stewart, entered the house a second time to conduct a thorough investigation. They left the scene at approximately 7:45 a.m., after they had taken photographs and removed the front door and the revolver among other items of evidence. There was no indication that the free dog or kitten had compromised any evidence.

On December 11, 1995, the Ravalli County Attorney filed an information charging Hubbel with aggravated assault, a felony. Hubbel pleaded not guilty. On January 29, 1996, he filed a motion to suppress all evidence seized on the property leading to the house as well as all evidence seized inside the house. The court held an evidentiary hearing on the motion on May 2,1996, approximately five months after the search. At that hearing, Carole Hubbel testified that if asked, she would have given her consent the night of the shooting for the search and further testified that she now gave her retroactive consent. Since that incident, she has allowed law enforcement personnel into her home to investigate the premises in connection with the shooting incident. Additionally, Carole Hubbel is the sole owner of the house and the property, although Defendant Hubbel, who had been her husband for four and one-half months prior to the shooting incident, also resided at the house.

The District Court denied Hubbel’s motion to suppress. First, with respect to evidence seized outside the home, the court applied the criteria enunciated by the United States Supreme Court in U.S. v. Dunn (1987), 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326, for analyzing “curtilage” questions under the Fourth Amendment to the United States Constitution. It held that the area surrounding the home did not fall within the home’s curtilage, and thus the police could lawfully search it without first obtaining a warrant. It also analyzed the issue under the Montana State Constitution. It applied State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61, and held that because the evidence indicated that the Hubbels did not take any steps to communicate that entry onto the property was forbidden, the Hubbels did not have a reasonable expectation of privacy. Thus, the law enforcement officers were within their authority to enter the property, park within the general parking area, and proceed to the front door. All evidence observed in plain view was admissible.

Second, the District Court held that search and seizure of the evidence within Hubbel’s home did not fall within any of the commonly recognized exceptions to the warrant requirement, such as a search incident to an arrest or exigent circumstances. In particular, there was no reason for the police to believe that the dogs or any person on the property would destroy the evidence. However, the District Court relied upon dicta in State v. Weaver (Ore.1994), 874 P.2d 1322, and held that Carole Hubbel’s retroactive consent to the police entry justified the warrantless search and seizure of evidence within the house.

The jury trial commenced June 3,1996, and the jury found Hubbel guilty. Hubbel now appeals the denial of his motion to suppress.

STANDARD OF REVIEW

The standard of review of a district court’s denial of a motion to suppress is whether the court’s interpretation and application of the law is correct. State v. Graham (1995), 271 Mont. 510, 512, 898 P.2d 1206, 1207-08. We review the court’s findings of fact to determine whether they are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Siegal (1997), 281 Mont. 250, 257, 934 P.2d 176, 180.

ISSUE ONE

Was the warrantless search and seizure of evidence on private land leading up to and including the threshold of Hubbel’s residence constitutional?

Hubbel contends that the evidence discovered by the State pursuant to its warrantless entry onto the private property surrounding the house where he lived, including the driveway and walkway leading up to and including the front porch, should be suppressed based upon the Fourth and Fourteenth Amendments to the United States Constitution and Article II, Section 11 of the Montana State Constitution, which protect against unlawful searches and seizures. Hubbel argues that pursuant to State v. Loh (1996), 275 Mont. 460, 914 P.2d 592, because the officers were not legally on the property when they first observed evidence, the plain view doctrine does not apply.

At the outset we note than when analyzing search and seizure questions that specially implicate the right of privacy, we consider and address both Sections 10 and 11 of Article II of the Montana Constitution. Siegal, 934 P.2d at 184. Article II, Sections 10 and 11 of the Montana Constitution provide:

Section 10. Right of privacy. 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.
Section 11. Searches and seizures. The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.

To determine whether there has been an unlawful search pursuant to Montana’s constitution, we look to two factors: (1) whether the person has an actual expectation of privacy that society is willing to recognize as objectively reasonable; and (2) the nature of the state’s intrusion. State v. Scheetz (1997) [286 Mont. 41], 950 P.2d 722, 726. In Bullock, we analyzed the extent to which a person has a legitimate expectation of privacy on his private property, and held that

in Montana a person may have an expectation of privacy in an area of land that is beyond the curtilage which the society of this State is willing to recognize as reasonable, and that where that expectation is evidenced by fencing, ‘No Trespassing,” or similar signs ... entry by law enforcement officers requires permission or a warrant.

Bullock, 901 P.2d at 75-76 (internal citation omitted.) We explained that “ [w]hat a person knowingly exposes to the public is not protected, but what an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Bullock, 901 P.2d at 70 (citing Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582).

In Bullock, the defendant had moved his cabin to a place where it was barely visible from the forest service road, had erected a fence and gate separating his property from the road, and had posted “No Trespassing” signs. Additionally, the parties in Bullock stipulated that anyone wishing to enter the property in the past, including members of the Jefferson County Sheriff’s Department, had first requested permission. Bullock, 901 P.2d at 76. Accordingly, in that case, we concluded that the defendant’s expectation of privacy was reasonable. We held that the entry by the law enforcement officers onto the defendant’s property without permission or a warrant constituted an unreasonable search and that the evidence that was gathered thereafter was inadmissible. Bullock, 901 P.2d at 76.

Hubbel contends that Bullock has no bearing on this case. He maintains that the analysis we outlined in Bullock applies only when examining whether a search of private property beyond the curtilage is lawful. He argues that the property leading up to the front door was within the curtilage. He therefore urges this Court to apply a “curtilage” analysis, rather than a Bullock analysis, and hold that the warrantless search of his curtilage was unconstitutional. He does not elaborate as to whether this Court should apply the same factors for resolving “curtilage” questions under the Montana State Constitution as used by the Supreme Court pursuant to the Fourth Amendment (See Dunn, 480 U.S. at 301, 107 S.Ct. at 1139), or whether the Court should develop a different method for analyzing that issue.

Hubbel misreads Bullock. In Bullock, we traced in great detail the origins of the concepts of “curtilage” and “open fields.” We explained the manner in which those doctrines have seeped into federal constitutional analysis, and the role they currently play in interpreting the reach of the Fourth Amendment to the United States Constitution. Bullock, 901 P.2d at 70-75. As the United States Supreme Court explained in Dunn, the concept of curtilage originated at common law to afford a property owner the same protection under the law of burglary to the area immediately surrounding the dwelling house as it afforded the house itself. Dunn, 480 U.S. at 300,107 S.Ct. at 1139. That concept has spilled over into federal constitutional analysis. The Fourth Amendment now extends protection not only to one’s home but also to the curtilage area immediately surrounding the home. It does not extend protection to open fields. Oliver v. United States (1984), 466 U.S. 170, 178-80, 104 S.Ct. 1735, 1741-42, 80 L.Ed.2d 214, 224-26.

For purposes of analyzing search and seizure questions, the concept of curtilage is thus meaningful only insofar as it is distinguished from open fields, which are afforded no Fourth Amendment protection. However, in Bullock, we declined to follow the United States Supreme Court’s distinction between the two, and we declined to apply the Dunn criteria to that case. Bullock, 901 P.2d at 71. Instead, based upon our unique constitution and this state’s strong tradition of respect for individual privacy, we adopted our own analysis for determining when entry by law enforcement officers onto private property requires a warrant or permission. Bullock, 901 P.2d at 71, 75. Based upon Bullock and later cases involving search and seizure, this Court recognizes a legitimate expectation of privacy based upon factors such as the place of the investigation, the control exercised by the person over the property being investigated, and the extent to which the person took measures to shield the property from public view, to communicate that entry is not permitted, or to otherwise protect his property from intrusion. Because we have adopted our own analysis under Montana’s constitution, the concept of “curtilage” is thus meaningless. Accordingly, we apply Bullock to the facts of this case.

We hold that with respect to the property leading to the front door, the Hubbels had no legitimate expectation of privacy that society is willing to recognize as objectively reasonable. The Hubbel property abutted a heavily traveled U.S. highway. In spite of the property’s proximity to frequent passersby, the Hubbels did not erect a fence separating their property from the highway, did not place a gate at the entrance to their driveway, did not plant shrubs or bushes to shield their property from public view, and did not post “No Trespassing” signs or other signs indicating that entry was not permitted. The walkway from the driveway to the front porch was also unobstructed. The Hubbels placed no fencing, planting or other enclosure around the home and took no steps to shield the porch from public view or to prevent casual visitors from walking to the front door. The police were thus well within their authority when they drove into the driveway and parked in the general parking area where they observed evidence in plain view. They were well within their authority to proceed on the open walkway to the front door, where they saw yet more evidence in plain view.

We next consider the nature of the State’s intrusion. Scheetz, 950 P.2d at 726. In Bullock, the State’s invasion was overly intrusive. The officers entered private property that was fenced and gated, ignored posted warnings, and scrutinized areas of the defendant’s homestead that he sought to keep private. Bullock, 901 P.2d at 76. In contrast, the intrusion in this case was minimal. The police simply parked in the general parking area routinely used by other visitors, and, after observing blood evidence on the driveway and bullet holes in the front door, continued walking along the sidewalk to the front porch. They did not ignore posted warnings, hop fences, open gates, or slip through bushes intended to screen the home from view. In short, they did nothing other than what any other casual visitor to the Hubbel residence would do. In fact, Hubbel stated that if the police had parked in the driveway and walked to the front door to sell policemen ball tickets, they would have had a legitimate right to be on the premises. Under these circumstances, we conclude that the State did not offensively intrude upon the Hubbels’ privacy. We hold that the entry onto the Hubbels’ property leading up to and including the threshold of the residence did not require a warrant.

Because Montana’s unique constitutional scheme affords citizens broader protection of their right to privacy than does the Fourth Amendment to the United States Constitution, we usually need not consider the Fourth Amendment issue. Scheetz, 950 P.2d at 724 (citation omitted.); Bullock, 901 P.2d at 75. However, Hubbel argues that the application oí Bullock to the facts in this case renders Montana’s constitutional right to privacy to be narrower than that afforded by the Fourth Amendment. He maintains that the area from the driveway to the porch falls within the definition of “curtilage” enunciated in Dunn, and insists that the Fourth Amendment to the United States Constitution extends protection to that area even if the Montana State Constitution does not.

Hubbel is incorrect on both counts. An application of federal Fourth Amendment analysis leads to the same result. The United States Supreme Court resolves curtilage questions with reference to four factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301, 107 S.Ct. at 1139 (citing California v. Ciraolo (1986), 476 U.S. 207, 221, 106 S.Ct. 1809, 1817, 90 L.Ed.2d 210, 222 (Powell, J., dissenting)). In this case, as we already elaborated, the area is not enclosed by a fence or shrubbery, and the Hubbels took no steps to screen the porch from passersby or otherwise prevent visitors from observing what was in plain view. There is no evidence that the area surrounding the home was put to any special use which would indicate that it was intimately connected with the home itself or that the Hubbels reasonably expected that the area should be treated the same as the home itself. Thus, even under a federal analysis, the area in question does not fall within the “curtilage” of the home, and it is not protected by the Fourth Amendment to the United States Constitution. Montana’s right of privacy as enunciated in Bullock is not narrower than the federal right. Indeed, we continue to hold that our constitution affords citizens broader protection to that right than does the Fourth Amendment to the United States Constitution. Accordingly, we hold that the District Court did not err in denying Hubbel’s motion to suppress any evidence observed and seized within plain view in the parking area, on the walkway, and on the front porch.

ISSUE TWO

Did the District Court err in holding that Carole Hubbel’s “retroactive consent,” given five months after the police searched and seized evidence inside the Hubbel home, cured an otherwise unconstitutional search and seizure?

Pursuant to the Fourth and Fourteenth Amendments to the United States Constitution and Article II, Section 11 of the Montana Constitution, warrantless searches conducted inside a home are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585. See also State v. Rushton (1994), 264 Mont. 248, 257, 870 P.2d 1355, 1361. One such exception is when the search is conducted pursuant to a consent that is freely and voluntarily given. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860 (citing Bumper v. North Carolina (1968), 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802); State v. Kim (1989), 239 Mont. 189, 196, 779 P.2d 512, 517. This Court has adopted the “totality of the circumstances” test used by the Supreme Court to determine whether consent is voluntary. Kim, 779 P.2d at 517 (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059); Rushton, 870 P.2d at 1361.

In this case, the parties agree that neither Hubbel nor his wife Carole Hubbel gave the officers prior consent to search and seize evidence inside their home. However, five months after the search, at the hearing on the motion to suppress, Carole Hubbel gave her “retroactive consent.” Hubbel now urges this Court to reject any notion that a so-called “retroactive consent” can justify an otherwise illegal search and seizure. He contends that allowing a person to consent to an otherwise unconstitutional search that has already been conducted would render “the situation ripe for either improper inducements, misleading statements, or pressure by the police to gain consent after an illegal search has been conducted.” For policy reasons, Hubbel urges this Court to hold that consent must be given prior to the search for it to be valid and qualify as an exception to the warrant requirement.

The State, on the other hand, contends that the retroactive consent operates to cure all constitutional infirmities. It argues that the timing of the consent is simply one fact that should be considered under the “totality of the circumstances” and that this Court should apply the “totality of the circumstances” test to find that Carole Hubbel’s consent was valid. The State relies heavily upon State v. Weaver (Ore. 1994), 874 P.2d 1322, the case cited by the District Court. It also points to United States v. Tovar-Rico (11th Cir. 1995), 61 F.3d 1529, 1535-36 and United States v. Gonzalez (11th Cir. 1996), 71 F.3d 819, 828-830 in support of its position.

This Court has had at least two occasions to touch upon the issue of retroactive consent. One occurred over two decades ago in State v. Keller (1976), 170 Mont. 372, 553 P.2d 1013. In that case, the sheriff had confiscated the defendant’s truck and had conducted a search without a warrant and without the defendant’s knowledge. Four days later, while in jail, the defendant signed a written consent form. Keller, 553 P.2d at 1021-22. This Court nonetheless held that the evidence seized during the search was inadmissible. We stated:

[The sheriff] attempted to remove the taint of illegality by a consent form signed by defendant four days later that does not purport to be retroactive. Defendant’s signature was obtained after search of the truck while defendant was held in jail in the absence of counsel. Material obtained from this truck was the subject of the laboratory test and was introduced in evidence over defendant’s objection. This material was illegally obtained, and its admission in evidence and the expert testimony and laboratory tests concerning it was prejudicial error.

Keller, 553 P.2d at 1021-22 (emphasis added). Accordingly, although we held that the consent did not justify an earlier illegal search and seizure, we hinted that if the scope of the consent expressly related back to the search (and if the defendant had been assisted by counsel), the result may have been different. However, that statement was ambiguous and in any event was dicta.

More recently, in Bullock, we again broached the issue. In that case, the defendant had been charged with unlawfully killing and possessing a game animal in violation of §§ 87-3-103 and 112, MCA. Bullock, 901 P.2d at 63. The State argued that even if the police officers had xml awfully entered the property when they viewed the elk the defendant had allegedly killed, the defendant had subsequently consented to the search when he allowed the police officers to inspect the elk and offered to take them to the kill site. Bullock, 901 P.2d at 76. This Court rejected the State’s argument, stating that “[e]ven if [the defendant] consented, it was after the officers wrongfully entered his property and saw the elk.” Bullock, 901 P.2d at 76 (emphasis added). However, in that case, we reached our decision based upon our conclusion that the consent flowed from the xinlawful entry and therefore could not be used to justify it. Bullock, 901 P.2d at 76. In this case, Hubbel does not contend that Carole Hubbel’s “consent” was the product of the unlawful entry. Additionally, in Bullock, it does not appear that the defendant expressly stated that he intended his consent to apply retroactively. We thus view the precise issue before the Court today to be one of first impression in Montana.

At the outset, we reject the State’s proposal that a “totality of the circumstances” test should be used to determine the validity of the “retroactive consent.” That test is used when determining whether or not a consent was voluntarily and freely given. Kim, 779 P.2d at 517 (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059); Rushton, 870 P.2d at 1361. In this case, Hubbel does not contend that Carole Hubbel’s “consent” was the product of duress or coercion. Rather, what is at issue is the timing of the consent, and whether, as a matter of law, a consent can justify an earlier unconstitutional search if the person giving the consent so intends.

Because the voluntary nature of Carole Hubbel’s “consent” is not at issue, two cases cited by the State in support of its position, Gonzalez and Tovar-Rico, are inapposite. At issue in both cases was whether or not the consent was freely given, not whether a retroactive consent validated an earlier unconstitutional search and seizure of evidence. See Gonzalez, 71 F.3d at 829-30 (deciding whether the police’s illegal entry into the owner’s kitchen should be deemed coercive activity that affected the owner’s later consent to search other parts of the premises); Tovar-Rico, 61 F.3d at 1535-36 (deciding whether the defendant’s initial oral consent to enter the apartment and her subsequent written consent to conduct a thorough search were voluntary).

The only cited case that addresses the precise issue is Weaver. In that case, the Oregon Supreme Court held that the timing of the consent in and of itself was not dispositive. Instead, relying on the proposition that the consenting party is the person who determines the scope of the consent, the court stated in dicta that a consent could retroactively validate a search or seizure that would otherwise be unlawful if evidence indicates that the consenting party so intended. Weaver, 874 P.2d at 1327-28. However, in that case, no evidence indicated that the defendant intended his consent to retroactively apply to the earlier search. The evidence seized by the police was thus suppressed. Weaver, 874 P.2d at 1328.

Not surprisingly, there is a dearth of cases in other jurisdictions that have addressed the precise issue before this Court today. We review those cases located to glean insight to the issue. Just as the Weaver court in Oregon, at least two other jurisdictions have held or implied that a consent can justify an earlier unconstitutional search. See State v. Kimble (La. 1979), 375 So.2d 924, 927 (holding that owner’s after-the-fact consent to search and seize evidence in a vacant trailer that incriminated defendants constituted a waiver of the warrant requirement.); State v. Williams (La. 1977), 353 So.2d 1299, 1303-05 (holding that the defendant’s subsequent, written consent, given with the full knowledge that the police had previously entered his house without a warrant, amounted to a waiver of the warrant requirement and rendered the earlier search and seizure valid), cert. denied, 437 U.S. 907, 93 S.Ct. 3098, 57 L.Ed.2d 1138 (1978); Martin v. United States (D.C. 1989), 567 A.2d 896, 906 n. 23 (“We assume without deciding (since the point has not been briefed or argued) that consent. .. can be retroactive, provided that the person giving the consent intends it to be retroactive.”).

On the other hand, we also located cases that, although distinguishable from this case to varying degrees, all fairly stand for the proposition that a consent must precede a search and seizure for it to provide a valid exception to the warrant requirement. See U.S. v. Wilson (5th Cir. 1994), 36 F.3d 1298, 1304-05 (holding that evidence was inadmissible because it was not within the scope of defendant’s oral pre-seizure consent to a cursory visual inspection and the seizure was conducted “prior to, not pursuant to [the defendant’s] written consent” to conduct a complete search)(emphasis in original); United States v. Melendez-Gonzalez (5th Cir. 1984), 727 F.2d 407, 414 (rejecting the argument that a written consent form which “simply came too late” vitiates a prior illegal search, because “[t]here is no authority which justifies an earlier illegal search based upon a later consent to an additional search.”); Mickelson v. State (Wyo. 1995), 906 P.2d 1020, 1022 (stating that efforts to establish consent after an illegal entry “ran afoul of the proposition that such action must be ‘justified at its inception.’”) (citing Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905); People v. Thiret (Colo. 1984), 685 P.2d 193, 201 (holding that a search exceeded the scope of the initial oral consent and was not validated by a subsequent written consent: “An allegedly consensual seizure must stand or fall on the basis of the consent pre-existing the seizure.”).

Unfortunately, the cases cited provide little or no analysis to assist us. However, it is our opinion that the conclusion reached in the latter cases reflect the better view: to be valid and qualify as an exception to the warrant requirement, a consent must precede a search.

A search validated by a “retroactive consent” is not really a search conducted pursuant to a consent at all. Rather, at the moment of inception, the search is unlawful and unjustified. In Montana, we jealously guard our broad right of privacy. Scheetz, 950 P.2d at 724, 725; Siegal, 934 P.2d at 191. However, when the police conduct a search such as the one at issue in this case, they are acting in the absence of any safeguards to that privacy: a neutral, objective court has not made an advance determination of probable cause; no exigent circumstances or any other emergency situation apparent prior to the search exists; and no one with authority has consented to the intrusion. That they subsequently obtain a “consent” is merely fortuitous.

The requirement of advance justification, by virtue of a warrant or carefully carved exception, is nothing new. Indeed, it is fundamental and inherent to all search and seizure cases. For example, in another other context not involving the question of the timing of a consent, the United States Supreme Court stated that to be lawful, a search and seizure must be justified from the beginning. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court evaluated the circumstances under which a police officer may search an individual for hidden weapons during the course of an investigation without running afoul of the Fourth Amendment. The Supreme Court stated that the search must be justified based upon the facts available to the officer at the moment of the seizure. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-80. The officer’s actions must be “justified at its inception...”. Terry, 392 U.S. at 20, 88 S.Ct. at 1879. The Supreme Court further cautioned that when practicable, the police must “obtain advance judicial approval . . . through the warrant procedure.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879. See also State v. Stubbs (1995), 270 Mont. 364, 369, 892 P.2d 547, 550 (citing Terry and stating that a stop and frisk must be “justified at its inception.”), overruled on other grounds, 275 Mont. 460, 914 P.2d 592. In Montana, since we first adopted the plain view doctrine in 1973 until today, a fundamental requirement has been that the police officers have prior justification to search a protected area. See State v. Loh (1996), 275 Mont. 460, 471-73, 914 P.2d 592, 599-601 (generally tracing Montana case law regarding the plain view doctrine). Exigent circumstances for conducting a warrantless search are “those circumstances where it is not practicable to secure a warrant.” State v. McCarthy (1993), 258 Mont. 51, 57, 852 P.2d 111, 114-15. It is axiomatic that the exigent circumstances, such as mobile vehicle, possible destruction of evidence, safety of police officers or other emergency situation, be apparent at the inception of the search.

Additionally, requiring prior consent is the only view that makes sense in light of the purposes behind the suppression rule. The rule excluding illegally obtained evidence serves primarily to deter lawless police conduct. Terry, 392 U.S. at 12, 88 S.Ct. at 1875 (citations omitted). Allowing an after-the-fact “consent” to justify an otherwise lawless search and seizure would erode the suppression rule’s deterrent force. This is particularly true in cases where the police do not have probable cause to obtain a warrant. In such a case, the police have nothing-to lose. An unlawful intrusion may be viewed as expedient on the off-chance that someone with authority will later “consent.”

In this case, the police officers did not obtain consent prior to their search. At least one officer apparently believed that a warrant was required. However, rather than seek prior judicial approval, they chose instead to intrude into the privacy of the Hubbel home. We hold that their entry without a warrant and without prior consent violated Article II, Section 11 of the Montana State Constitution and evidence gathered as a result of the unlawful search was inadmissible by virtue of the exclusionary rule. See Wong Sung v. United States (1963), 371 U.S. 471, 486-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455. We accordingly hold that the District Court erred when it held that Carole Hubbel’s “retroactive consent” validated the search.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and TRIEWEILER concur.