State v. Ellis

DISTRICT COURT JUDGE SIMONTON,

dissenting.

¶88 I agree with Justice Leaphart’s dissent, and I feel the Court should take this opportunity to abandon the per se rule of State v. Schwarz, 2006 MT 120, 332 Mont. 243, 136 P.3d 989, for two reasons. First, it is inconsistent with Montana law and our analysis of consent-to-search cases. Rather than perpetuating bad law, the Court should *122use this opportunity to return to the totality of the circumstances approach. Secondly, holding that a child of thirteen may not invite officers into her home and may not give them evidence that supports her…