                            No.    92-181
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992


JOHN AND JANE DOE,
         Plaintiffs and Appellants,


THE STATE OF MONTANA, acting through
its Department of Revenue,
         Defendant and Respondents.



APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis & Clark,
               The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               James T. Ranney, Attorney at Law, Missoula, Montana
          For Respondent:
               Allen B. Chronister; Chronister, Driscoll     &   Moreen,
               Helena, Montana



                     D            Submitted on Briefs:   July 30, 1992
Justice Karla M. Gray delivered the Opinion of the Court.


     John and Jane Doe appeal from an order of the First Judicial
District Court, Lewis and Clark County, dismissing their complaint
for failure to state a claim under Rule 12(b) ( 6 ) , M.R.Civ.P.   We
affirm.
     The sole issue on appeal is whether the District Court erred
in granting the defendant's motion to dismiss.
     In 1989, the Department of Revenue investigated John and Jane
Doe to determine whether they failed to report business income
while on public assistance. Agents from the Department of Revenue
obtained a warrant to search the Doe home for business and
financial records and other evidence relating to the sale of
insurance and dealing in firearms.
     During the subsequent search, the agents entered the Does'
bedroom closet. There, they found records relating to the sale of
firearms,   They also found a standard pharmacy photoprocessing
envelope which appeared to contain photographs.    The agents opened
the envelope and examined the photographs.          Several of the
photographs depicted Jane Doe nude and the couple engaged in sexual
activity. One photograph depicted the Doest children helping John
Doe remove his boots.    Doe was partially disrobed, with either his
hand or penis visible.
     The latter photograph caused the Department of Revenue agents
to suspect child sexual abuse or child pornography; they summoned
Missoula police officers.       The police officers contacted the
Missoula County Attorney's office and were informed that the
photographs did not warrant criminal prosecution.        A    iss sou la
officer notified Child Protective Services of the possible child
abuse pursuant to 5 41-3-201, MCA.       Child Protective Services
subsequently interviewed the Does1 children at school.             The
interview revealed no indication of child abuse or pornography.
    On August 2, 1991, John and Jane Doe filed a complaint for
invasion of privacy.    They alleged that the Department of Revenue
agents exceeded the scope of the warrant when they opened and
searched the envelope.    On February   21, 1992, the District Court

granted the defendantls motion to dismiss for failure to state a
claim upon which relief can be granted.    The Does appeal.
     Did the District Court err in granting the defendant's motion
to dismiss the complaint for failure to state a claim?
     A district court's dismissal of a complaint for failure to
state a claim is governed by well-established principles.             A
complaint should not be dismissed unless it appears that the
plaintiff is entitled to no relief under any set of facts which
could be proved in support of the claim. Furthermore, the district
court must construe the complaint in the light most favorable to
the plaintiff; all allegations of fact in the complaint are taken
as true. Morgan v. City of Harlem (1987), 227 Mont. 435, 437, 739
P.2d 491, 492-93.

     While the ~istrictCourt discussed the Inplainviewviexception
to the warrant requirement, it dismissed the Does1 complaint based
on its conclusion that the agents did not exceed the scope of the
search warrant.     The Does contend, first, that the search of the
                                  3
photoprocessing envelope exceeded the scope of the warrant and,
second, that two of the requirements necessary to invoke the I1plain
vieww doctrine were not met,     Finally, the Does argue that an
allegation that three of their photographs were seized and not
returned was not addressed by the District Court.
     The District Court determined that the agents did not exceed
the scope of the warrant when they examined the contents of the
photoprocessing envelope, relying on united States v. Ross (1982),
456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.    While the facts in
Ross involve the scope of a search conducted under the automobile
exception to the warrant requirement, the Supreme Court described
therein the scope of a search conducted under a valid search
warrant:
     A lawful search of fixed premises generally extends to
     the entire area in which the object of the search may be
     found and is not limited by the possibility that separate
     acts of entry or opening may be required to complete the
     search. Thus, a warrant that authorizes an officer to
     search a home for illegal weapons also provides authority
     to open closets, chests, drawers, and containers in which
     the weapon might be found.
Ross, 456 U.S. at 820-21.
     Here, the agents conducted a search of the Doesf residence
pursuant to a warrant. The warrant authorized the agents to search
the residence for business and financial documents.     Under Ross,
they were entitled to search every place in which business and
financial documents or evidence might be found. The search led the
agents to the bedroom closet, where they found documents and items
relating to the Doest criminal activity.        The photoprocessing
envelope also was located in the closet. Given the warrant's focus
on documentation of suspected illegal activity, the envelope may
have contained photographic evidence.        Thus, under Ross, the
envelope did not differ from the closet; it constituted merely
another container in which evidence of the illegal activity might
be found. Under these circumstances, the warrant was sufficiently
broad to authorize the agents to open the envelope and review the
photographs.   We conclude that the examination of the contents of
the envelope was within the scope of the warrant.
     The Does contend that Justice Stewart's concurring opinion in
Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d
542, is controlling precedent for their argument that the agents

exceeded the scope of the warrant by examining the photographs
individually. In Stanley, officers obtained a warrant to search a
residence and to seize equipment, records and other material used
in or derived from an illegal wagering business.      In searching a
desk drawer, they found film and proceeded to view it.          On the
basis of the contents of the film, the defendant was charged with,
and convicted of, knowing possession of obscene material.
     The Supreme Court reversed the conviction. Concurring in the
result, Justice Stewart determined that the officers exceeded the
authority of the warrant when they seized and viewed the film. He
characterized the officers' conduct as a general, exploratory
search which led to a seizure of an item not described in the
warrant.
     Stanlev    is   neither   controlling   nor   persuasive    here.
Initially, we    note that the     Stanley majority    reversed the
conviction based on the First, rather than the Fourth, Amendment;
Stanlev held that "the First and Fourteenth Amendments prohibit
making mere private possession of obscene material a crime."
Stanley, 394 U . S .   at 568,   Concurring opinions do not constitute
controlling precedent.
      In addition, if Justice Stewart's concurring opinion is
relevant at all, it supports the State's position that the agents
acted within the scope of the warrant.         Unlike the officers in
Stanlev, the agents in the present case did not conduct a general
search that was unrelated to the purpose of the warrant; the
photoprocessing envelope was found in the closet with other
evidence of the Doesp criminal activity. Moreover, in Stanley, the
film could not reasonably have contained any of the items described
in the warrant; here, the envelope may have contained photographic
documentation relating to the illegal dealing in firearms of which
the Does were suspected. The fact that it contained merely private
photographs of a personal nature could not have been known to the
agents in advance.
      We hold that, under the circumstances of this case, the
opening of the envelope and examination of the photographs did not
exceed the scope of the warrant.        Based on this holding, we need
not address the "plain vieww doctrine.
      The Doesf final argument is that an allegation that three of
their photographs were seized and not returned was not addressed by
the ~istrict Court.        While not so stated, presumably the Does
intend this argument to establish error by the District Court in
dismissing their complaint. The argument is flawed.
     The thrust of the Does' complaint is a single invasion of
privacy via the agents1 initial intrusion into the photoprocessing
envelope and review of individual photographs.      The one sentence
contained in the five-plus page complaint on which the Does
apparently premise this final argument states that they discovered,
after the search, that three photographs were missing.              The
sentence is not a factual allegation that any person or entity
against whom     the   complaint   is brought   actually   seized   the
photographs.     This is insufficient to put the defendants or the
District Court on notice that they were alleging a specific seizure
by one or more named defendants.       Moreover, in their brief in
opposition to the motion to dismiss before the District Court, the
Does stated:
     [Tlhe crux of our complaint is an allegation of a single
     invasion of privacy via the initial illegal intrusion
     into the Plaintiffs1 personal packet of photographs, with
     the subsequent actions all being primarily relevant to
     the issue of damages.    ...
Under these circumstances, the cited sentence in the Doest
complaint does not constitute an independent basis for their claim
of invasion of privacy.        The District Court did not err in
dismissing the complaint.
     Affirmed.



We concur:
Justices
Justice William E. Hunt, Sr., dissenting.
     I dissent.     There is nothing more basic to the subject of
privacy than the nude body.    "The desire to shield one's unclothed
figure from view of strangers, and particularly strangers of the
opposite sex, is impelled by elementary self-respect and dignity."

York v. Story (9th   Cir.   1963), 324 F.2d 450, 455, cert. denied, 376

U.S. 939 (1964).
     In my opinion, Justice Stewart9 concurring opinion in S t a n l e v
                                    s
is especially applicable to the facts of this case.      In this case,
as in S t a n l e v , the Department of Revenue agents were acting under
the authority of the warrant when they opened the closet door.
However, they exceeded that authority when they found and seized
the photographs.      In no way did the warrant indicate that
photographs were to be searched. The agents rummaged through the
photographs for a considerable amount of time, even though the
nature of the photography should have been readily apparent.        The
agents conducted an exploratory search which exceeded the bounds of
the warrant and invaded the privacy of the Does.
     A week after the search, in the presence of a local newspaper
reporter, police officers openly discussed and joked about the
photographs.      In addition, an official from Child Protective
Services told the children's grade school principal of the alleged
abuse in order to elicit his permission to interview the children.
The Does have been embarrassed and humiliated, and their reputation
tarnished, if not ruined.
     I would reverse the District Court and allow the case to
proceed on the merits.




     Justice Terry N. Trieweiler concurs in the foregoing dissent.
