                       No. 13365
      IN THE SUPREME COURT OF THE STATE OF MONTANA

                         1977


THE STATE OF MONTANA,
                  Plaintiff and Appellant,
     -VS-

DONALD LEWIS,
                   Defendant and Respondent.


Appeal from:    District Court of the Thirteenth Judicial
                 District,
                Honorable Robert Wilson, Judge presiding
Counsel of Record:

      For Appellant:

          Hon. Michael Greely, Attorney General, Helena,
           Montana
          Harold F. Hanser, County Attorney, Billings,
           Montana
          Charles A. Bradley, Deputy County Attorney, argued,
           Billings, Montana
      For Respondent :
            Moses, Kampfe, Tolliver and Wright, Billings,
             Montana
            D. Frank Kampfe argued, Billings, Montana


                             Submitted:    January 24, 1977
                                Decided:   JUN   1 O 1971
Mf; Justice Gene B. Daly delivered the Opinion of the Court.

     The state appeals from an order of the district court,

Yellowstone County, suppressing evidence the state sought to
introduce in the trial of defendant Donald Lewis.
     Oh the evening of October 8, 1975, an anonymous person

called the home of Del Jones, a member of the Billings School
Board.   The caller threatened Jones and his family with the
statement: "If the schools are not closed tomorrow, your house
will be bombed."   The recipient of the telephone call laid the

telephone receiver on a table and the Billings police were
informed of the threatening call. The police, with the assist-
ance of telephone company personnel, traced the call to defendant's

residence. Tracing the call was accomplished by means of a

"telephone trap" which keeps open the connection.between the

parties as long as the recipient of the call does not replace the

telephone receiver in its cradle. The telephone trap was placed
on the telephone at the Jones residence with the consent of Jones

and as a result of telephone-.threats made to members of the
school board during the teachers' strike in Billings.

     Once the call's origin was traced to defendant's residence

two Billings police officers were dispatched for the purpose of
confirming the telephone connection between defendant's telephone
and the telephone at the Jones residence.   Upon arriving at de-
fendant's residence, at approximately 11:OO p.m. on the evening
of October 8, 1975, one of the police officers requested and re-
ceived defendant's permission to use defendant's telephone.    When

the police officer picked up the telephone receiver he realized

the telephone line was dead.   The accompanying police officer was

                           -2-
sent outside to investigate.    This investigation established

the telephone line between defendant's house and the telephone

pole was severed.

    The police officers then informed defendant they intended

to leave defendant's residence to obtain the assistance of a

telephone company lineman, who could trace the connection from

the severed line.    In the early morning hours of October 9, 1975,

between 1:00 a.m. and 2:00 a.m., a telephone company employee

and police officer returned to defendant's residence and, from

the alley behind defendant's property, pulled the fallen tele-

phone line in defendant's backyard over defendant's fence.    A line-

man's portable telephone was attached to the retrieved telephone

line and the connection to the Jones residence was confirmed.

    Later on the morning of October 9, 1975, another police

officer and an accompanying telephone company lineman arrived

at defendant's home.    The police officer informed defendant of

his Miranda rights     and advised defendant the investigation was

to continue and photographs were to be taken from defendant's

backyard.   The lineman repaired and replaced the telephone line,

giving the removed portion of the telephone line to the investi-

gating officer.     Photographs were taken by the police from inside

defendant's backyard.

     When the police officer and lineman had left defendant's

home, after their second visit on the morning of October 9, 1975,

defendant went to the police station inquiring as to the events

taking place.   Defendant was again informed of his Miranda rights

and he proceeded to secure counsel.
         On      October 9, 1975, the county attorney for Yellowstone

    County filed an Information charging defendant with the crime

    of intimidation in violation of section 94-5-203(1) (a), R.C.M.

    1947.        Subject to the filing of the Information, on October 17,

    1975, a police officer and a telephone company lineman returned
    to defendant's home.       The entire telephone cable, from the
    telephone pole to the defendant's home, was removed at this time

%   and additional photographs of the defendant's home were taken from
    the street. All searches and seizures conducted on the four

    noted occasions were performed without a search warrant.
         On March 26, 1976, defense counsel submitted a motion to
    suppress evidence obtained from defendant's home by law enforce-
    ment officers and to suppress all statements made by defendant at

    the time police conducted their investigations. A hearing on
    defendant's motion to suppress was held in the district court

    April 2, 1976. On April 9, 1976, the district court issued its

    order and memorandum holding:

         "* * * that any and all physical evidence secured
         from the curtilage owned by the defendant and any
         and all testimony relating thereto shall be suppressed
         and are deemed inadmissible as evidence against the
         defendant.I'
        The following issues are presented for review:

            I) Whether the district court erred when it ordered all
    physical evidence secured from the curtilage owned by the de-
    fendant and any and all testimony relating thereto suppressed as
    inadmissible evidence?

            2)    whether the district court erred when it ordered evidence
    secured by the wire tap into defendant's telephone line during
    the early morning hours of October 9, 1975, suppressed as in-

    admissible evidence?
     The state contends the evidence secured by warrantless

search and seizure on the four occasions in question is admis-

sible under these theories:

     A)     The telephone company had the authority to secure the

evidence in question under section 95-701(b) (d) , R.C .M. 1947,

and even though the telephone company was acting as agents of

the police, this authority was not lessened.

     B)     The plain view doctrine sanctions such seizure of

evidence if (1) the law enforcement officer was situated in a

place where he had a legal right to be and (2) the discovery of

the evidence was inadvertent.

     Section 95-701, R.C.M.     1947, provides:

     "Searches and seizures--when authorized. A search of
     a person, object or place may be made and instruments,
     articles or things may be seized in accordance with
     the provisions of this chapter when the search is made:

            "(a) As an incident to a lawful arrest.

         "b
          ()   With the consent of the accused or of any
     other person who is lawfully in possession'of the ob-
     ject or place to be searched, or who is believed upon
     reasonable cause to be in such lawful 'possession by
     the person making the search.

            "(c)   By the authority of a valid search warrant.

         "d
          ()   Under the authority and within the scope of a
     right of lawful inspection granted by law,"

     It is admitted by the state and the facts show that the

telephone company was acting as the agent of the police.         Telephone

company personnel came upon defendant's property at the request

of the police and they were accompanied by the police on each

occasion.     The establishment of such an agency presupposes that

any warrantless search and seizure conducted by telephone company

personnel is legally justified, just if legally justified when

conducted by the police.      Section 95-701(b) legally justifies
such a warrantless search and seizure where the defendant gives

his consent to the search.      However, in the instant case, the

testimony of the investigating officer establishes that defendant

only consenbd to the officer's initial entry into defendant's

residence and the use of defendant's telephone.       This expressed

consent falls short of any expressed authorization to search the

premises, remove physical evidence or tap into telephone lines.

Furthermore, no implied consent authorizing telephone company

personnel to enter the premises for the purpose of general mainten-

ance and repair can be construed to authorize an inspection under

section 95-701(d),    carried on for the purpose of obtaining

evidence for the state to be used in a criminal prosecution.

State v. LaFlarnme,      Mont   .    ,   551 P.2d 1011, 33 St.Rep. 632.

     The state's theory    "B" justifying the warrantless search

and seizure of evidence adopts a simplified interpretation of the

plain view doctrine.    We find Mr. Justice Stewart's remarks

in Coolidge v. New Hampshire, 403 U.S.443, 91 S.Ct. 2022, 29

L ed 2d 564, clarifying:
         "What the 'plain view' cases have in common is that
     the police officer in each of them had a prior justifi-
     cation for an intrusion in the course of which he came
     inadvertently across a piece of evidence incriminating
     the accused. The doctrine serves to supplement the prior
     justification--whether it be a warrant for another object,
     hot pursuit, search incident to lawful arrest, or some
     other legitimate reason for being present unconnected
     with a search directed against the accused--and permits
     the warrantless seizure. Of course, the extension of the
     original justification is legitimate only where it is
     immediately apparent to the police that they have evidence
     before them; the 'plain view' doctrine may not be used
     to extend a general exploratory search from one object
     to another until something incriminating at last emerges."
     403 U.S. 466

         "The limits on the doctrine are implicit in the state-
     ment of its rationale. The first of these is that plain
     view alone is never enough to justify the warrantless
     seizure of evidence. This is simply a corollary of the
        f a m i l i a r p r i n c i p l e discussed above, t h a t no amount of
        probable cause can j u s t i f y a w a r r a n t l e s s s e a r c h o r
        s e i z u r e a b s e n t ' e x i g e n t circumstances.'    Incontrovertible
        testimony of t h e senses t h a t an i n c r i m i n a t i n g o b j e c t
        i s on premises belonging t o a c r i m i n a l s u s p e c t may e s t a b -
        l i s h t h e f u l l e s t p o s s i b l e measure of probable cause. But
        even where t h e o b j e c t i s contraband, t h i s Court has
        r e p e a t e d l y s t a t e d and enforced t h e b a s i c r u l e t h a t t h e
        p o l i c e may n o t e n t e r and make a w a r r a n t l e s s s e i z u r e .
        Taylor v . United S t a t e s , 286 U.S. 1; Johnson v . United
            .   #   .



        S t a t e s , 333 U.S. 10; ~ c ~ o n a v. United S t a t e s , 335 U.
                                                        ld
        S. 451; Jones v. United S t a t e s , 357 U.S. 493,497-498;
        Chapman v. United S t a t e s , 365 U.S. 610; Trupiano v .
        United S t a t e s , 334 U.S. 699                ."
                                                        (Emphasis s u p p l i e d . )
        403 U.S. 468.

        I n l i g h t of t h e above d i s c u s s i o n , we hold t h e p l a i n view

d o c t r i n e misapplied t o t h e f a c t s of t h i s c a s e .               The p o l i c e , w i t h

t h e a i d of telephone company p e r s o n n e l , had no p r i o r j u s t i f i c a -

t i o n f o r s e a r c h i n g t h e d e f e n d a n t ' s premises, much l e s s s e i z e

evidence, without a s e a r c h warrant.                        There i s an obvious absence

of h o t p u r s u i t , s e a r c h i n c i d e n t t o l a w f u l a r r e s t o r o t h e r e x i g e n t

circumstances which would p e r m i t t h e a p p l i c a t i o n of t h e p l a i n view

doctrine                t o j u s t i f y a s e a r c h and s e i z u r e without s e c u r i n g a

search warrant.                   S t a t e v . Amor, 164 Mont. 182, 520 P.2d 773;

Coolidge v. New Hampshire, supra.

        W f i n d , a s d i d t h e d i s t r i c t c o u r t , t h a t t h e f a c t s demon-
         e

s t r a t e t h e B i l l i n g s p o l i c e secured evidence from d e f e n d a n t ' s

r e s i d e n c e without d e f e n d a n t ' s consent and without a s e a r c h warrant.

Such a w a r r a n t l e s s s e i z u r e , a b s e n t l e g a l j u s t i f i c a t i o n , r e n d e r s

the evidence and a l l testimony r e l a t i n g t h e r e t o i n a d m i s s i b l e i n

defendant's criminal prosecution.

        The o r d e r of t h e d i s t r i c t c o u r t i s a f
     W Concur:
      e
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