                                                                                              04/10/2018


                                           DA 16-0134
                                                                                          Case Number: DA 16-0134

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2018 MT 83



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHANCE RYAN CONLEY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Sixteenth Judicial District,
                        In and For the County of Custer, Cause No. DC 2015-53
                        Honorable Michael B. Hayworth, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate
                        Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman;
                        Assistant Attorney General, Helena, Montana

                        Wyatt A. Glade, Custer County Attorney, Miles City, Montana



                                                    Submitted on Briefs: December 28, 2017

                                                               Decided: April 10, 2018


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    This appeal arises from the Sixteenth Judicial District Court’s denial of a motion

to suppress evidence discovered in the course of a probationary search. We affirm.

¶2    We restate the issue on appeal as follows:

      Did the District Court err in denying Conley’s motion to suppress?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On May 19, 2015, Chance Ryan Conley (Conley) was given a deferred sentence

for two counts of criminal possession of dangerous drugs, methamphetamine. Conley

was placed on probation and assigned to probation officer Tom Fulton (Fulton).

Conley’s sentence contained numerous conditions and restrictions, including requiring

daily reporting to his probation officer, abstention from illegal drug use, and consent to

probationary searches.   Relevant to this appeal is Condition 8 of Conley’s deferred

sentence:

      Upon reasonable suspicion that the Defendant has violated the conditions of
      supervision, a probation and parole officer may search the person, vehicle,
      and residence of the Defendant, and the Defendant must submit to such
      search. A probation and parole officer may authorize a law enforcement
      agency to conduct a search, provided the probation and parole officer
      determines reasonable suspicion exists that the Defendant has violated the
      conditions of supervision.

¶4    After his supervision was transferred to probation Officer Kristi Moore (Moore),

Conley immediately began failing to report. Conley reported in person on June 11 and

June 15, 2015; he admitted to using methamphetamine and signed admissions to that fact.

Conley made no contact after June 15, 2015. He had multiple probation violations,


                                            2
including continued drug use, lack of employment, lack of compliance with the treatment

court, and a current arrest warrant. Another probationer reported Conley was actively

using methamphetamine.

¶5    The record shows that on July 6, 2015, Moore and Fulton went to Conley’s last

known address, hoping to locate him. When Moore and Fulton arrived they observed a

white, four-door vehicle in the driveway with at least two occupants. The driver, later

identified as Kevin Baker (Baker), attempted to pull out of the driveway when Moore

blocked their exit. Conley quickly got out of the front passenger’s side of the vehicle.

Moore placed Conley in handcuffs and searched his person; no weapons or contraband

were found. Conley and Baker were instructed to sit on the ground.

¶6    Moore and Fulton were not aware of the ownership status of the vehicle. They

informed the men that the vehicle would be searched because of the “red flags” of

on-going drug use Conley exhibited, including dirty and shabby clothing, disheveled

physical appearance and the admission that they had been up all night, as well as the

conditions of his probation. While Moore waited with the two men, Fulton looked into

the passenger side of the vehicle. Fulton testified that from outside of the vehicle he

could see a glasses pouch on the back-passenger’s seat, and that glasses pouches are often

used by drug users to store their drug kits. Upon examination of the glasses pouch,

Fulton discovered needles and a baggy with a crystal-like substance. Conley admitted it

was his. Fulton placed the glasses pouch on the top of the vehicle and contacted law

enforcement.



                                            3
¶7     Sergeant Kord Merical and Sergeant Barney Murnin arrived at Conley’s home.

Conley and Baker claimed all personal items in the vehicle and consented to a search,

where additional needles and crystal-like substances were discovered. Sergeant Merical

requested dispatch provide information on the registered owner of the vehicle; neither

Conley nor Baker were identified as the registered owner. Conley and Baker were both

arrested. Moore filed an affidavit in support of a petition to revoke Conley’s sentence

based on eight probation violations.      Conley was charged with three new crimes:

misdemeanor possession of drug paraphernalia, misdemeanor possession of marijuana,

and felony possession of methamphetamine. Conley pleaded not guilty.

¶8     Conley’s counsel filed a motion to suppress the evidence seized as a result of the

vehicle search, arguing there was no inquiry to determine if Conley was the owner of or

if he had control over the white vehicle. On December 7, 2015, the District Court denied

the motion, finding that a probationer need not be a driver or owner of a vehicle in order

to initiate a probationary search of the vehicle, so long as the probationer was a passenger

immediately prior to the search. The State agreed to dismiss the marijuana possession

charge and Conley pled guilty to the felony methamphetamine and misdemeanor

paraphernalia charges.    On January 11, 2016, the District Court revoked Conley’s

deferred sentence and sentenced Conley in accordance with the plea agreement. Conley

appeals.

                               STANDARD OF REVIEW

¶9     We review a district court’s denial of a motion to suppress to determine whether

the court’s findings are clearly erroneous and whether those findings were applied

                                             4
correctly as a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d

60. A finding is clearly erroneous if it is not supported by substantial evidence, if the

lower court has misapprehended the effect of the evidence, or if our review of the record

leaves us with the firm conviction that a mistake has been made. City of Missoula v.

Moore, 2011 MT 61, ¶ 10, 360 Mont. 22, 251 P.3d 679 (citing State v. Roberts, 1999 MT

59, ¶ 11, 293 Mont. 476, 977 P.2d 974).

                                       DISCUSSION

¶10      Did the District Court err in denying Conley’s motion to suppress?

¶11      Conley asserts that the search of the vehicle was illegal. The Fourth Amendment

to the United States Constitution and Article II, Section 11 of the Montana Constitution

protect citizens against unreasonable searches, and seizures. Article II, Section 11 of the

Montana Constitution reads:

                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.

¶12      The right to be free of unreasonable searches and seizures is augmented by

Montana’s constitutional right of privacy articulated in Article II, Section 10, which

reads:

                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.




                                              5
¶13    When analyzing search and seizure questions that specially implicate the right of

privacy, Sections 10 and 11 are read together. State v. Boyer, 2002 MT 33, ¶ 19, 308

Mont. 276, 42 P.3d 771. This conjunction leads us to examine the legality of a search or

a seizure by determining whether there has been an unlawful governmental intrusion into

one’s privacy. State v. Hill, 2004 MT 184, ¶ 19, 322 Mont. 165, 94 P.3d 752.

¶14    Conley asserts the District Court erred when it concluded that the search was

authorized by Condition 8 of his deferred sentence and Admin. R. M. 20.7.1101(7).

Conley argues that the search was an illegal warrantless search because the vehicle

searched was not Conley’s and he did not have authority or control over the vehicle to

justify a warrantless probation search. The State asserts the District Court properly

concluded the search was authorized by the probation search condition in Conley’s

deferred sentence.

¶15    The District Court found the probation officers had the discretion to search the

vehicle. They possessed sufficient articulable facts which gave rise to a reasonable

suspicion that Conley had violated the conditions of his release, and as a passenger in the

vehicle immediately prior to the search, Conley exerted sufficient control over the vehicle

for the purpose of the probationary search.

¶16    To determine whether there has been an unlawful governmental intrusion into

one’s privacy in search and seizure situations, we look at the following factors:

(1) whether the person had an actual expectation of privacy in the place searched;

(2) whether society is willing to recognize that expectation as objectively reasonable; and

(3) the nature of the State’s intrusion. Hill, ¶ 24. Where no reasonable expectation of

                                              6
privacy exists, there is neither a “search” nor a “seizure” within the contemplation of

Article II, Section 10 of the Montana Constitution. Hill, ¶ 24.

¶17    To be sure, a criminal conviction and a probationary sentence do not eviscerate all

of the defendant’s rights of privacy. Mont. Const. art. II, § X; State v. Moody, 2006 MT

305, ¶ 19, 334 Mont. 517, 148 P.3d 662. However, a probationer has a reduced privacy

interest. State v. Burke, 235 Mont. 165, 169-71, 766 P.2d 254, 256-57 (1988); see also

State v. Fischer, 2014 MT 112, ¶ 11, 347 Mont. 533, 323 P.3d 891; State v. Brooks, 2012

MT 263, ¶ 14, 367 Mont. 59, 289 P.3d 105; State v. Burchett, 277 Mont. 192, 195-96,

921 P.2d 854, 856 (1996). The reduced expectation does not automatically mean a

probationer has no privacy expectations.

¶18    The basic purposes of probation and its corresponding conditions are to provide an

offender the chance to rehabilitate outside of the prison setting and to provide the

community protection from future criminal activity. Moody, ¶ 19; Burke, 235 Mont. at

169, 766 P.2d at 256. The judgment imposing a deferred sentence is a form of contract

between the court and the probationer, eliminating certain privacy expectations; the

probationer is aware that his activities will be scrutinized. Burke, 235 Mont. at 171, 766

P.2d at 257 (citing Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S. Ct. 3164, 3169

(1987)). A probation officer may search a probationer’s person, vehicle, and residence

and the probationer “must submit to such search,” upon the probation officers

“reasonable suspicion that the offender has violated the conditions of supervision.”

Admin. R. M. 20.7.1101(7). This Court has determined that a probation officer is granted



                                             7
a “degree of flexibility” to determine how to exercise his or her supervisory powers.

Burke, 235 Mont. at 169, 766 P.2d at 256.

¶19    Condition 8 of Conley’s deferred sentence required him to submit to any search of

his person, vehicle, and residence if his probation officer had reasonable grounds to

believe Conley was violating the terms of his probation. The undisputed facts are that

Conley violated his terms of probation1 by failing to report to his probation officer for

over two weeks, after admitting to and testing positive for methamphetamine use.

Further, he failed to appear for a court-mandated drug rehabilitation program.

¶20    Clearly, Conley was aware of his status as a probationer and aware of his

noncompliance with the conditions of his probation. Conley has not shown he had an

actual expectation of privacy as a passenger in a vehicle neither Conley or Baker owned,

nor has he demonstrated that society would consider such an expectation to be reasonable

under these facts. Society recognizes, and in fact expects, that probationers will comply

with the conditions of their probation.     Society does not recognize a probationer’s

unimpeded right to privacy in his or her person, vehicle, or residence.

¶21    In cases not involving probationary searches, this Court has determined that where

no reasonable expectation of privacy exists, there is neither a “search” nor a “seizure”

within the contemplation of Article II, Section 10 of the Montana Constitution. Hill, ¶ 24

(citing Boyer, ¶ 20.) Further, where no expectation of privacy exists there can be no



       1
         Two months prior to the search, Conley was convicted of two counts of criminal
possession of methamphetamine and given a three-year deferred sentence that included
probation.
                                             8
unlawful government intrusion.       Hill, ¶ 36.    Conley has failed to show he had a

reasonable expectation of privacy.

¶22    Conley also asserts that even if there was no reasonable expectation of privacy in

his own vehicle, the language of his probation condition, that a “parole officer may

search the . . . vehicle . . . of the Defendant,” clearly excludes any vehicle that is not the

defendant’s vehicle, including items located in the back seat. Because the vehicle was

not Conley’s, the probation officer did not have the authority to search it. We disagree.

¶23    In State v. McCarthy, a defendant asserted he had an expectation of privacy in a

vehicle where he was a passenger during an accident. 258 Mont. 51, 54, 852 P.2d 111,

113 (1993). This Court concluded that McCarthy had no reasonable expectation of

privacy, noting that one relevant factor in our determination was that the defendant did

not own the car. McCarthy, 258 Mont. at 55, 852 P.2d at 113.

¶24    Hill also involved the search of a vehicle not owned by the driver. Hill, ¶ 25.

During a traffic stop, Hill told the officer that the vehicle was not his, but rather it had

been rented from an agency by his friend. Hill, ¶ 7. He disclaimed any knowledge of

any items in the trunk but declined to give permission to search. Hill, ¶ 9. The officers

contacted the rental agency and learned that Hill was not an authorized driver and that the

car was two days overdue. Hill, ¶ 9. They obtained permission to search from the rental

agency. Hill, ¶ 9. Under these facts, this Court concluded Hill did not have a reasonable

expectation of privacy regarding the vehicle or any items stored in the trunk. Hill, ¶ 36.




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                                      CONCLUSION

¶25    As a probationer, Conley has a reduced privacy interest.        Under these facts,

Conley had no reasonable expectation of privacy in the vehicle or its contents.

Consequently, there was not a search. There was not an unlawful governmental intrusion

within the contemplation of the Montana Constitution. The District Court correctly

denied Conley’s motion to suppress.

¶26    Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE

Justice Laurie McKinnon, specially concurring.

¶27    I do not agree with the Court’s conclusion that there was not a “search,” because

Conley had “no reasonable expectation of privacy.” Opinion, ¶ 25. It appears the Court

reasons that because a probationer has a “reduced privacy interest,” a probationer has no

expectation of privacy in his person, vehicle, or residence. Opinion, ¶¶ 17, 20. This

clearly cannot be true since implicit in the requirement that there be reasonable suspicion

to conduct a probationary search is the existence of a protectable privacy interest.

Although Conley said the glasses pouch was his and it was located in a vehicle in which

Conley exercised dominion and control, the Court mistakenly concludes Conley did not

have an actual expectation of privacy. Opinion, ¶ 20. I disagree and believe that our

                                            10
precedent supports a conclusion that Conley had a legitimate and reasonable expectation

of privacy in the items secreted in the glasses pouch, which he claimed were his and over

which he exercised dominion and control. Although I would recognize Conley had an

expectation of privacy, I nonetheless believe the search was supported by reasonable

suspicion and, therefore, valid.

¶28    To begin, the Court decided this case on an issue that was not briefed or raised by

the parties on appeal.     The District Court addressed whether the facts supported

reasonable suspicion for the search, concluding that Conley had standing and thus a

reasonable expectation of privacy to raise a Fourth Amendment claim. Neither party has

asserted that Conley lacked an expectation of privacy in the car which would, in turn,

preclude him from asserting a Fourth Amendment claim. In State v. Bullock, 272 Mont.

361, 372-73, 901 P.2d 61, 68-69 (1995), this Court expressly adopted an

automatic-standing rule and supported its departure from precedent on the enhanced

protections of Article II, Section 11. In Bullock we held that “when the charge against

the defendant includes an allegation of a possessory interest in the property which is

seized, the defendant has standing to object to the prosecutorial use of that evidence

based on either the unlawful search of the location where it was found, or its unlawful

seizure.” Bullock, 272 Mont. at 373, 901 P.2d at 69. We reaffirmed our adoption of the

automatic-standing rule in State v. Parker, 1998 MT 6, ¶¶ 2, 8, 19, 287 Mont. 151, 953

P.2d 692, concluding that Parker could challenge the legality of a search of a fanny pack

found in the rear deck area of a vehicle in which he was a passenger. Parker denied

ownership of the fanny pack and did not own or drive the searched vehicle. Parker, ¶¶ 2,

                                           11
22. This Court determined that Parker could challenge the legality of the search because

he was charged with possession of the items seized. Parker, ¶ 19.

¶29   However, in Hill, ¶¶ 11, 33, without considering the automatic-standing rule

adopted in Bullock and followed in Parker, we held that Hill did not have a reasonable

expectation of privacy in a rental car he illegally possessed, despite having been charged

with a possessory offense. In Hill, the Court recited Article II, Section 10’s right to

privacy, but avoided addressing Bullock and Parker, where we analyzed standing within

the context of Montana’s constitutionally enhanced privacy protections. Hill, ¶ 19.

¶30   If we were to follow Bullock and Parker here, which have not been overruled,

Conley is deemed to have a reasonable expectation of privacy which allows him to

challenge the legality of the search. The Court, however, finds that Conley has no

reasonable expectation of privacy; there was no search; and the actions of law

enforcement may not be scrutinized because there was no unlawful intrusion. If we were

to follow Hill, then we should examine whether the asserted expectation of privacy was

reasonable and, if it was not reasonable, must conclude that the search was lawful.

Apparently, the parties on appeal relied on our Bullock/Parker precedent because neither

party asserts Conley lacked an expectation of privacy sufficient to challenge the

lawfulness of the search. Even pursuant to Hill, however, our precedent supports a

conclusion that Conley had a reasonable expectation of privacy in the glasses pouch.

Conley admitted the glasses pouch was his; it was in the vehicle directly behind where

Conley was seated; it was clearly accessible to Conley and within his dominion and

control; and the contraband was secreted within it. The Court, like in Hill, ignores

                                           12
Bullock and Parker. However, this time the Court concludes there is no reasonable

expectation of privacy, not because the defendant was occupying an illegally possessed

rental car, as Hill was, but because he is on probation. Opinion, ¶ 25. I disagree with the

Court’s conclusion and basis for finding that Conley did not have an expectation of

privacy.

¶31    The Court mixes into the soup a person’s status as a probationer. The Court

concludes that because a probationer has a “reduced privacy interest,” a probationer has

no “expectation of privacy” in his person, vehicle, or residence, and that, consequently,

there is no “search.” Opinion, ¶¶ 17, 20, 25. A probationer has, as does any person, an

expectation of privacy in his person, vehicle, or residence. This privacy interest is

protected against unreasonable intrusion by the Fourth Amendment and Article II,

Section 11 and may be intruded upon only when articulable facts supporting “cause”

have been demonstrated. In the case of a probationer, the degree of certainty supporting

cause is less than probable cause—a search may occur based upon reasonable suspicion.

Thus, the requirement that law enforcement have reasonable suspicion prior to

conducting a search relates not to whether a probationer has a protectable privacy interest

in his person, vehicle, or residence—as he clearly does. Rather, reasonable suspicion

refers to the degree of certainty which must be demonstrated prior to an intrusion into a

probationer’s protectable privacy interest. Because a probationer’s privacy interest is

reduced, the degree of certainty which officers must demonstrate prior to conducting a

search is similarly reduced. See Griffin, 483 U.S. at 879, 107 S. Ct. at 3171; Burke, 235

Mont. at 169, 766 P.2d at 256.         The requirement, therefore, that a search of a

                                            13
probationer’s person, vehicle, or residence be based upon reasonable suspicion does not

equate to a probationer having no expectation of privacy, as the Court concludes. Rather,

it counsels the standard or degree of certainty which must be demonstrated and that

articulable facts exist to support the intrusion.

¶32    The search of a person, object, or place may be conducted pursuant to a valid

search warrant or in accordance with a judicially recognized exception. Section 46-5-

101, MCA. It is well recognized that a probationary search is one of those exceptions

and may occur without probable cause as long as the officer has reasonable suspicion for

the search. “We have permitted exceptions when ‘special needs, beyond the normal need

for law enforcement, make the warrant and probable-cause requirement impracticable.’”

State v. Boston, 269 Mont. 300, 304, 889 P.2d 814, 816 (1994) (citations omitted). “A

State’s operation of a probation system, like its operation of a school, government office

or prison, or its supervision of a regulated industry, likewise presents ‘special needs’

beyond normal law enforcement that may justify departures from the usual warrant and

probable cause requirements.” Burke, 235 Mont. at 168-69, 766 P.2d at 256 (quoting

Griffin, 483 U.S. at 873-74, 107 S. Ct. at 3168). The probation officer must be able to act

upon “a lesser degree of certainty than the Fourth Amendment would otherwise require in

order to intervene before a probationer does damage to himself or society.” Burke, 235

Mont. at 169, 766 P.2d at 256 (quoting Griffin, 483 U.S. at 879, 107 S. Ct. at 3171). To

this end, the probation officer must proceed “on the basis of [his] entire experience with

the probationer, and to assess probabilities in the light of [his] knowledge of [the



                                              14
probationer’s] life, character, and circumstances.” Burke, 235 Mont. at 169, 766 P.2d at

256 (quoting Griffin, 483 U.S. at 879, 107 S. Ct. at 3171).

¶33    “Restrictions on a probationer are meant to assure that the probation serves as a

period of genuine rehabilitation and that the community is not harmed by the

probationer’s conditional liberty status.” Burke, 235 Mont. at 169, 766 P.2d at 256. The

probation officer is granted a “degree of flexibility” with “knowledge of the original

offense, and with the probationer’s welfare in mind.” Burke, 235 Mont. at 169, 766 P.2d

at 256. Because of his expertise, “the probation officer [is] in a far superior position to

determine the degree of supervision necessary in each case.” Burke, 235 Mont. at 169,

766 P.2d at 256.     Given the nature of Conley’s conviction, the probation officers’

familiarity with Conley’s history and issues surrounding his addiction, and the

circumstances of the encounter, there were articulable facts supporting reasonable

suspicion that the interior of the vehicle in which Conley recently exited contained

evidence of his drug use. We have consistently applied the foregoing authority and

principles to uphold searches of an area that was within the control of the probationer.

See State v. Fritz, 2006 MT 202, ¶ 11, 333 Mont. 215, 142 P.3d 806 (vehicle driven by,

but not registered to, defendant); Boston, 269 Mont. at 305-06, 889 P.2d at 817 (storage

garage).

¶34    Here, Conley admitted that he had been using methamphetamine for two to three

years. The District Court recognized the severity of Conley’s addiction and, in addition

to conditions of probation, referred Conley to Drug Treatment Court. As is common with

an untreated addiction to a dangerous substance such as methamphetamine, Conley tested

                                            15
positive within one week of his release. Further, Conley failed to comply with daily

reporting requirements for participation in Drug Treatment Court. On the two occasions

he did report, June 11 and June 15, 2015, Conley admitted to using methamphetamine.

Based on Conley’s admittedly ongoing and untreated drug use, the District Court issued a

warrant for Conley’s arrest. Conley’s probation officers thereafter sought to locate him,

going to Conley’s last known address. The probation officers observed Conley get out of

the front passenger’s side of a vehicle that was parked in front of the residence. Conley

exited the vehicle immediately upon observing his probation officers’ approach.

Conley’s appearance and behavior during his interaction with his probation officers was

consistent with his ongoing use of methamphetamine:          his clothing was dirty and

disheveled, he smelled badly, and he admitted to having been up all night. The seized

glasses pouch was within the immediate area in which Conley had just been observed.

The officers noted the glasses pouch was within their plain view. Therefore, I would

conclude, consistent with the District Court’s reasoning, that the search was supported by

the probation officers’ reasonable suspicion that Conley was continuing to abuse

methamphetamine and authorized by the conditions of Conley’s deferred sentence.

¶35   The District Court articulated findings which it determined were consistent with

Conley’s ongoing and untreated drug use. As the District Court explained, “[w]hile there

may not have been observations of intoxication at the scene, articulable facts supporting

reasonable suspicion of ongoing drug violations arose from Mr. Conley’s drug use

history, Conley’s drug use during the short period of supervision, June 11, 2015, and June

15, 2015, confirmed use of methamphetamine, and observed effects Mr. Conley’s pattern

                                           16
of drug use (failure to report to probation daily and other non-compliance).” The District

Court concluded that “[t]hese observations, each prior to arriving at Conley[’s] residence,

are coupled with the on-scene observations suggesting ongoing drug use.” The District

Court’s findings of fact are not clearly erroneous and were correctly applied as a matter

of law.

¶36    I disagree with the Court that this was not a “search” and Conley did not have a

reasonable expectation of privacy in the glasses pouch. The Court confuses the reduced

degree of certainty which must be demonstrated for a lawful probationary search and

whether there is a protectable privacy interest. Further, Conley’s expectation of privacy

was an issue neither party raised on appeal. I agree with the District Court that there was

reasonable suspicion for the search and would affirm the District Court’s denial of

Conley’s motion to suppress. I regret that district courts in the future will continue to

struggle, as the District Court did here, with this Court’s inconsistent interpretation of

standing to challenge the legality of a search set out in Bullock, Parker, and Hill, and that

we have misstated the law as it applies to probationary searches.



                                                  /S/ LAURIE McKINNON



Justice Beth Baker, specially concurring.

¶37    I join most of ¶¶ 31-35 of Justice McKinnon’s Special Concurrence, because I

believe it applies the correct analysis of the governing law to the facts of this case. I part

company with Justice McKinnon, however, on two points.

                                             17
¶38    First, I do not agree that Hill, Bullock, and Parker set forth inconsistent

interpretations of standing to challenge the legality of a search. A defendant charged

with a possessory offense in Montana has automatic standing to contest the search.

Bullock, 272 Mont. at 372-73, 901 P.2d at 68-69. We did not apply a different rule in

Hill. We did not hold that Hill lacked standing to challenge the search, but analyzed his

claims and determined that there was no unlawful government intrusion into Hill’s

privacy.

¶39    Second, I do not take the Court’s Opinion today to hold, as a matter of law, that a

probationer has no expectation of privacy “in his person, vehicle, or residence.” Opinion,

¶¶ 27, 31 (McKinnon, J., specially concurring). I understand the Court’s conclusion to be

that, under the facts of this case, Conley had no reasonable expectation of privacy in the

vehicle that was searched. Like Justice McKinnon, I believe that the law does support

Conley’s expectation of privacy—at least in the glasses pouch—but also that the facts

gave rise to reasonable suspicion to justify the search.

¶40    I join the Court in affirming the District Court’s denial of Conley’s motion to

suppress.


                                                  /S/ BETH BAKER




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