State v. K. Proctor

majority opinion

07/14/2026

DA 23-0409

Case Number: DA 23-0409

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 150

STATE OF MONTANA,

Plaintiff and Appellee,

KATHERINE ANNE PROCTOR,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. CDC 2022-30

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Alexander H. Pyle, Assistant Public Defender, Office of the State

Public Defender, Lewistown, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Cori Losing, Assistant

Attorney General, Helena, Montana

Kevin Downs, Lewis and Clark County Attorney, Mary Barry,

Deputy County Attorney, Helena, Montana

For Amici The American Civil Liberties Union and The ACLU of Montana:

Alex Rate, ACLU of Montana Foundation Inc., Missoula, Montana

For Amicus The Innocence Network:

Karl Pitcher, Attorney at Law, Missoula, Montana

Submitted on Briefs: November 5, 2025

Decided: July 14, 2026

Filed:

Clerk

Justice Laurie McKinnon delivered the Opinion of the Court

¶1 Katherine Anne Proctor (Proctor) appeals her June 9, 2023 conviction for felony

Assault on a Minor, in violation of § 45-5-212, MCA, entered in the First Judicial District

Court, Lewis & Clark County. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Whether the District Court erred in admitting expert testimony related

to “Shaken Baby Syndrome.”

Issue Two: Whether the District Court erred by not suppressing evidence obtained

under an impermissible general warrant.

Issue Three: Whether the prosecutor violated Proctor’s right to a fair trial with

impermissible statements related to Proctor’s character.

Issue Four: Whether Proctor’s counsel was ineffective.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 P.P. was born in May 2021 and was healthy. At the time, Proctor was an Assistant

Attorney General and P.P.’s father, Tim Proctor, was an officer with the Montana Highway

Patrol. Proctor and Tim diligently participated in routine neonatal care for P.P. The family

relied on an Owlet baby monitor integrated into a sock (Owlet) to track P.P.’s heart rate

and oxygen levels at night. The family was then living in Helena, Montana, but were

preparing to move to Choteau, Montana, for Tim’s job in August 2021. With Proctor

primarily caring for P.P. in Helena, Tim began residing in the family’s new residence while

returning regularly to assist Proctor. Unbeknownst to Proctor, Tim was engaged in an

extramarital affair at this time. Proctor and Tim prepared to sell their house in Helena,

with closing scheduled for September 29, 2021. However, Proctor could not immediately

move into the new Choteau home until her employer approved her to work remotely.

Instead, Proctor would temporarily move into an apartment in Helena with P.P. Proctor

enrolled P.P. with 3Rs Daycare (3Rs) in August 2021 so that she could return to work.

Proctor also relied on extended family for supplemental childcare.

¶4 On September 7 and 9, 2021, workers at 3Rs noted P.P. had dime-sized bruises on

her cheekbones and forehead when she arrived. P.P. arrived at day care with an abrasion

on her nose on September 13, 2021. Tim took care of P.P. when she was sick with

COVID-19 on September 20-23, 2021, and thereafter returned to Choteau. When Tim left,

P.P. did not have a black eye. The next day, Proctor watched P.P. Tim returned to Helena

on September 25, 2021, and noticed P.P.’s black eye, which Proctor claimed was the result

of dropping a toy on herself. Two separate workers at 3Rs later testified about having seen

P.P.’s black eye on September 27, 2021. The second worker was skeptical of Proctor’s

proffered explanation because she had not seen P.P. demonstrate the dexterity required to

grasp a toy in such a manner.

¶5 Tim returned to Helena on September 28, 2021, to assist Proctor in the final steps

of vacating the Helena house. He picked up P.P. from 3Rs that evening and fed her a bottle

at approximately 6:30 p.m. before leaving her on a blanket on the floor to continue packing

the home with Proctor. Major Dustin Lerette (Lerette), one of Tim’s coworkers, arrived at

around 7:45 p.m. and spoke with Tim. Lerette had a brief interaction with Proctor, who

appeared “stressed.” Additionally, Lerette heard music and P.P. crying from inside the

house. After Lerette left, Tim went back inside the house and found P.P. was asleep—not

on the ground where he had last seen her—but in her car seat. Proctor remained packing

at the house and Tim took P.P. to the apartment for the night. Once there, Tim prepped

P.P. for sleep, “put[ting] her pajamas on, chang[ing] her diaper[,]” and “warm[ing] up her

bottle.” “The entire time[,]” P.P was asleep, only waking up “[a] little bit” for her evening

bottle, of which she only consumed between “five and ten [milliliters].” P.P. usually

consumed 125 milliliters. Tim woke at 1:30 a.m. on September 29, 2021, after hearing a

noise. He checked on P.P., who remained asleep even after Tim picked her up.

¶6 At 6:00 a.m. on September 29, 2021, Proctor began readying P.P.’s morning bottle.

P.P would not wake up. Data from the Owlet, worn by P.P. overnight, showed her heart

rate had dropped to between 60 and 70 beats per minute (bpm). A typical four-month-old

should register at least 100 bpm. The parents were concerned about possible seizure

activity, as they noticed one side of P.P.’s body was twitching. Proctor called P.P.’s

pediatrician, who advised bringing P.P. to the emergency room.

¶7 At the emergency room in Helena, medical personnel reacted quickly on P.P.’s

arrival shortly after 7:00 a.m. because she was obviously “critically ill.” P.P. had a bruise

on her right eyelid. Due to P.P.’s moist mucous membranes, emergency room Dr. Andy

Coil (Dr. Coil) ruled out dehydration. Although P.P.’s heart rate and oxygen were initially

normal, her oxygen levels dropped shortly after her arrival, necessitating supplemental

oxygen. Her temperature was low. P.P was less responsive than she should have been at

four-months-old.

¶8 Dr. Coil conducted a head-to-toe exam and found P.P.’s anterior fontanelle, the “top

front part of [her] skull[,]” was “tense and bulging a little bit.” The swelling of P.P.’s

anterior fontanelle, which should have been “normally soft and somewhat squishy” at

P.P.’s stage of development, indicated pressure on the brain. Dr. Coil stepped out of the

room to order a computed tomography (CT) scan of the brain. When Dr. Coil returned,

P.P. was actively seizing. The CT scan indicated P.P. had suffered “a large, massive anoxic

brain injury.” Given the severity of the brain injury, Dr. Coil decided to transfer P.P. to

another hospital capable of providing “pediatric neurosurgery, [. . .] pediatric neurology,

and a pediatric intensivist” as required by P.P.’s dire situation but which was unavailable

in Helena. P.P. spent five hours in the Helena emergency room before being transported

by helicopter with Proctor to the children’s hospital in Kalispell, Montana. In preparation

for the flight, Dr. Coil and staff placed P.P. in a “medically induced coma” and intubated

her to “put her on life support to breathe” during transport.1 Dr. Coil indicated he would

not have been surprised if P.P. died due to the severity of her injuries.

¶9 Dr. Nicholas Satovick (Dr. Satovick), a neuroradiologist who contracted with the

hospital in Kalispell, reviewed P.P.’s CT scan from the Helena hospital. He found the scan

reflected P.P. had “a small subdural hemorrhage” on the left side of her brain, a “linear

focus of blood in the right lower cerebellum,” and a “profound [. . .] decreased attenuation

of the cerebral hemispheres of the brain on both sides.” The latter diagnosis was

determined because, rather than showing a “differentiation of gray and white matter” in

P.P.’s brain, the scans reflected “all one shade of grey” indicating an injury such as “loss

of blood flow or oxygen to the brain.” Dr. Satovick agreed with Dr. Coil that the CT scan

Medical staff made one unsuccessful attempt to intubate P.P. before completing the procedure. No evidence suggested P.P. had suffered any physical injury from the first failed attempt.

indicated P.P. had experienced a “hypoxic ischemic event” in which brain injuries were

caused by reduced oxygen and blood flow.

¶10 When P.P. and Proctor arrived in Kalispell, Dr. Timothy Stidham (Dr. Stidham)

ordered a Magnetic Resonance Imaging (MRI) scan of P.P.’s brain, a chest x-ray to check

the intubation, and a blood test. The blood test ruled out a Sudden Infant Death Syndrome

event. P.P. tested positive for the common cold but was not displaying any symptoms. She

tested negative for COVID-19, influenza, and respiratory syncytial virus. P.P. began

seizing again after metabolizing the antiseizure drugs administered before her flight to

Kalispell. Dr. Stidham restabilized P.P.

¶11 The CT scan confirmed significant swelling on the brain as well as significant

portions of her brain that were without oxygen long enough that she was going to have

irreversible, significant injury. Dr. Stidham decided against surgery on the brain because

all sides of the brain were affected, thus negating any benefit from emergency surgery. The

MRI showed P.P. had a cervical ligamentous injury but no spinal cord injury in her neck.

The subdural bleeding between the brain and the skull was more evident on the MRI than

it appeared on the CT scan conducted in Helena. Dr. Stidham put a C-collar on P.P. to

stabilize her neck ligaments and protect her spine.

¶12 Dr. Stidham asked Proctor about the bruising on P.P.’s face. He was skeptical of

Proctor’s explanation that P.P. had dropped a toy on herself because “it’s kind of hard for

four-months-olds to bruise their face and [. . .] bring [a] toy to her face with enough force

to cause a bruise[.]” Dr. Stidham testified that “any bruising without a very consistent

mechanism is a concern for [. . .] some type of child abuse[,]” especially in conjunction

with the x-ray imaging, which revealed multiple rib fractures. Dr. Stidham began to

suspect P.P.’s injuries resulted from trauma, specifically non-accidental trauma or abusive

trauma. He indicated the fractures were more important than the history of a mechanism

for the bruises on P.P’s face, and his leading diagnosis was “non-accidental trauma”

(NAT). On September 30, 2021, Dr. Stidham conducted a skeletal survey, which

confirmed the rib fractures and a femur fracture. The fractures were in various stages of

healing, suggestive of “different time points of different abusive injuries to [P.P.]” Dr.

Stidham further opined the rib fractures and P.P.’s brain injuries suggested a diagnosis of

NAT caused by inflicted abuse.

¶13 P.P.’s arrival presented a fast-moving medical situation to doctors in Kalispell, but

Dr. Stidham managed to keep Proctor and Tim apprised of developments. On September

29, he first told the parents that P.P.’s injuries resembled “inflicted injuries.” Neither

parent could provide Dr. Stidham with any history that could explain P.P.’s injuries and

P.P. had no history of any significant trauma. Confronted with Dr. Stidham’s suspicions,

Tim vomited. Proctor remained focused on the timing of P.P.’s injuries.

¶14 On October 1, 2021, Dr. Mark Remington (Dr. Remington), an ophthalmologist in

Kalispell, examined P.P.’s right eye.2 Dr. Remington found extensive hemorrhages in the

retina and “significant macular edema[,]” or swelling in the retina. When Dr. Remington

conducted a second exam on October 19, 2021, he was able to examine both of P.P.’s eyes.

Dr. Remington only dilated P.P.’s right eye, keeping her left eye undisturbed so nurses could continue checking for a sudden increase in pressure on the brain, a symptom of which is a dilated pupil, due to a persisting intracranial hemorrhage.

The hemorrhages were clearing in P.P.’s right eye as expected, but he also discovered

retinoschisis, or a splitting of the retina, as well as hemorrhages in the left eye.

¶15 Dr. Kelly Schmidt (Dr. Schmidt), a specialist in pediatric neurosurgery, also treated

P.P. On October 6, 2021, Dr. Schmidt ordered another MRI, which showed a tearing of

the arachnoid, a thin membrane connecting the brain to the skull. Blood from this tear

mixed with brain fluid into P.P.’s subarachnoid space. P.P. could not reabsorb the fluid,

which had begun to accumulate and cause pressure against P.P.’s skull in the week after

she first entered the Kalispell hospital. According to Dr. Schmidt, this was a “classic”

scenario in abuse cases: a patient would enter the hospital with a tear on this layer of the

brain and, “anywhere from one to sometimes weeks later[,]” fluid would then accumulate

within the brain.

¶16 Dr. Schmidt testified to child abuse protocols wherein doctors will examine both the

brain and the spine. Because infants have weaker neck muscles, cases of “abusive head

trauma or shaken baby” can lead to injury of the cervical spine. Babies “very rarely have

bony injur[ies,]” and instead they “tend to have injury more to soft tissue and to ligaments.”

The MRI of P.P.’s neck showed fluid in the joints of her neck at the base of her skull,

indicating a disruption of those joints. According to Dr. Schmidt, this injury can only be

caused by shaking a baby. As for a prognosis for P.P., Dr. Schmidt could only offer to

Proctor and Tim that P.P.’s brain had been “irreversibly injured.” She emphasized the

severity of P.P.’s brain injury. Further, she opined to them that P.P. “had been abused[.]”

Proctor again questioned the timeline of P.P.’s injuries, a response Dr. Schmidt found

“unusual” given the severity of P.P.’s immediate situation and the rapid pace of treatment

decisions.

¶17 Nine days after P.P.’s arrival in Kalispell, Dr. Schmidt relieved the

continued-pressure on her brain by draining the fluid. After a couple days, the laceration

healed and the tube was removed. However, P.P.’s recovery was limited to the abatement

of more immediate dangers from her injuries; Dr. Schmidt opined that P.P. would require

full-time care for the rest of her life and be unable to function independently in the world.

P.P.’s brain injury liquified her brain and the injured areas were “replaced by the normal

brain fluid,” leaving her with large portions of “just nonfunctioning brain.” P.P. was

missing the vision-processing structures and the balance center in the cerebellum due to

strokes she had been having. Dr. Schmidt was consistent in her diagnosis that P.P.’s brain

injury was caused by non-accidental trauma, discounting a competing theory ascribing

cause to a “venous clot” because the “strokes weren’t venous” since the issue was that “the

brain didn’t get enough oxygenated blood from the arteries[,]” not an issue of the veins

inability to drain blood away from the brain. Dr. Schmidt described that the result

resembled “a near drowning.”

Criminal Investigation

¶18 On September 29, Proctor called 3Rs to explain P.P.’s absence from daycare. P.P.

had last attended on September 28, when staff noticed the bruises under P.P.’s eyes. At

the time, a staff member asked Proctor about the injuries, which were blamed on dropping

a toy. When Tim arrived to pick up P.P. that evening, he offered the same explanation.

Out of concern for the bruising, 3Rs’s owner, Susan Anderson (Anderson) reviewed the

staff logbooks and discovered “a pattern of injuries” staff had noticed and kept a record of

during P.P.’s attendance. In addition to the black eye, the pattern included an alleged “rug

burn” on P.P.’s nose documented on September 13, 2021 and two additional bruises on

September 7 and 9. On September 28, staff met to discuss P.P. and decided to report the

pattern of injuries to Child Protective Services (CPS), which Anderson did on September

29.3

¶19 Led by Detective Joshua Van Dyke (Van Dyke) of the Lewis & Clark Sheriff’s

Office, the State began investigating the abuse of P.P. the same day. Van Dyke informed

Tim of the investigation. Van Dyke seized two smartphones belonging to Proctor and Tim

pursuant to a search warrant obtained on October 15, 2021. He applied for a second warrant

to search the devices, which was granted on October 28, 2021. The warrant application

alleged aggravated assault as probable cause and requested “[a]ll data currently stored in

or related to the account or device identified herein related to the crimes or offenses

identified herein[.]” This included location data, internet browsing history, media files,

and any correspondence on the devices. Van Dyke averred “[c]riminals will often use [. . .]

wireless communication methods to facilitate their crimes” but did not specify how

wireless communication may have facilitated the alleged abuse of P.P. The warrant

application sought cell phone information due to the parents’ use of the companion

smartphone application for the Owlet monitor and further noted that, according to CPS

While in the Natal Intensive Care Unit, Proctor nicked P.P.’s finger with nail clippers, which should not be used on a child P.P.’s age. There were further concerns about the possibility of the wound becoming infected within the hospital environment. A hospital social worker reported this incident to CPS in addition to the report made by the day care.

worker Jennifer Blodgett (Blodgett), both Proctor and Tim were “on their phones for a

significant amount of time following news of physical abuse to P.P.” At the suppression

hearing, Van Dyke testified that Blodget confirmed the parents’ smartphone use to him;

however Blodgett testified that she could not recall saying the same to Van Dyke.

¶20 The warrant granted the extraction of “all data currently stored” on the parents’

smartphones, with the exception of communications with legal counsel and clergy, as well

as any information the parties stipulated to protecting. The data sought encompassed but

was “not limited to” location history, internet activity, multimedia, metadata, and

correspondence through associated applications. Proctor moved to suppress evidence

obtained by this search warrant on the basis the warrant was overbroad. The District Court

denied this motion, concluding the temporal limitations provided specificity and the data

seized did not include “anything other than evidence related to the Owlet monitor, photos

of P.P., and messages referencing P.P. or injuries to P.P.”

Criminal Charges and Trial

¶21 The State filed an Amended Information on September 28, 2022, charging Proctor

with Assault on a Minor, a felony in violation of § 45-5-212, MCA, alleged to have

occurred between June 28, 2021 until October 13, 2021.4 Proctor, the State alleged, had

been overwhelmed by balancing working and caring for P.P. with Tim largely absent.

The original Information, filed on January 24, 2022, charged Proctor with one count of Aggravated Assault and one count in the alternative of Accountability for Aggravated Assault.

¶22 On March 4, 2022, Proctor moved to exclude testimony related to a series of

diagnoses typically referred to as “shaken baby syndrome” (SBS), arguing SBS is based

on insufficiently supported scientific evidence and its admission would be far more

prejudicial than probative. The District Court held a hearing on the matter on August 26,

2022.

¶23 The State presented Dr. Kathryn Wells (Dr. Wells), a board-certified child abuse

pediatrician, as their expert on NAT. She explained NAT, as a diagnosis, has been referred

to by various names, including SBS and “Abusive Head Trauma” (AHT). Dr. Wells

testified to the history of NAT, in addition to the controversies surrounding the diagnosis,

particularly when referred to by different diagnostic names. Speaking to the more

“colloquial term” of SBS, Dr. Wells noted that an SBS diagnosis does not result from a

series of tests, but instead refers to a “constellation of medical findings.” Shaking “may be

a component of [. . .] the mechanism that caused the injuries[,]” but the actual breadth of

findings was more accurately captured by the terms AHT/NAT.5 Dr. Wells herself did not

use SBS in her reports. Nevertheless, Dr. Wells testified that none of the major medical

associations—namely the “American Medical Association, American Academy of

Pediatrics, the radio graphic associations, the neurological associations”—disputed the

validity of AHT as a medical diagnosis. AHT, according to Dr. Wells, presented a legal

controversy, not a medical one.

AHT and NAT were used interchangeably by Dr. Wells.

¶24 According to Dr. Wells, a doctor would arrive at an NAT diagnosis like any other:

physical examinations of the patient, imaging, laboratory results, and the patient’s medical

history, ruling out competing causes through a “differential diagnosis.” Dr. Wells

explained the process of making a differential diagnosis: doctors begin with “a large list of

things that may be a cause for a certain presentation” and narrow the list of possible causes

as further tests are administered and doctors can interpret those results.

¶25 Helena doctors triaging P.P. initially diagnosed her with seizures, lack of oxygen,

and brain injuries, which Dr. Wells opined was commensurate with the process of securing

a differential diagnosis. Once P.P. transferred to Kalispell, treating doctors continued

assessing her condition through blood tests, which eliminated a bleeding disorder as a

possible cause for her condition, and administered further tests. A doctor arrives at a

diagnosis based on what is assessed, and does not “speak to who did what” or the issue of

culpability. Dr. Wells opined P.P.’s injuries were caused by “acceleration/deceleration”

and “rotational inertial forces” due to the nonimpact type of injuries presented. P.P. had

the triad of AHT injuries: retinal hemorrhages, brain bleeding, and brain swelling,

consistent with acceleration/deceleration potentially caused by nonimpact or impact into a

soft surface. However, she also had a brain contusion, a neck injury, and healing rib

fractures consistent with squeezing or grabbing of the chest. Importantly, if only the triad

was present, Dr. Wells would require further information to diagnose NAT. Taking the

sum of all of P.P.’s symptoms and eliminating an infection, bleeding problem, or other

underlying disorder through the differential diagnosis, Dr. Wells agreed P.P. had been

abused.

¶26 Discussion on NAT testimony continued at a September 20, 2022 hearing. Proctor

presented testimony from Dr. John Galiznik to argue that a diagnosis of NAT based on

retinal hemorrhages, brain bleeding, and brain swelling alone was unreliable without a

differential diagnosis. The District Court then issued an oral order denying Proctor’s

motion to exclude, concluding that, although a diagnosis based on that specific triad alone

may not be reliable and “you have to have more to get [to an NAT diagnosis.]” The court

was satisfied that an NAT diagnosis could be made on the evidence presented of the other

injuries beyond the triad. The District Court concluded the method of diagnosing NAT

was reliable and the experts were qualified to speak to that method. Thus, the State could

present to the jury at trial evidence from expert witnesses and P.P.’s treating physicians on

how, through the differential diagnosis process, medical staff arrived at an NAT diagnosis.

¶27 Trial began on December 5, 2022. The doctors who treated P.P. testified. The State

presented Dr. Wells and Dr. Logan Dance (Dr. Dance), a radiologist, as experts. Dr. Dance

opined that P.P. would have died from her brain injury if her skull had been fully fused and

not been able to expand with the swelling of her brain. His analysis of P.P.’s imaging was

not “diagnostic of abuse,” but rather fit with the mechanism of “severe noncontact shaking”

resulting in bruising of the brain, a highly specific injury in cases of NAT not present in

children accidentally injured in, for example, a car accident. As for P.P.’s neck injuries,

Dr. Dance believed the fluid between the joints of the top two vertebrae at the base of her

skull visible in the MRI scans indicated a loss of integrity to the connection between these

bones consistent with deceleration and acceleration. P.P.’s femur fractures, according to

Dr. Wells, most specifically suggested she had been abused, either through “really violent

shaking” or “just a yank” on her leg exerting significant force causing the end of the bone

to separate from the growth plate.

¶28 Dr. Wells testified that the cartilaginous quality of infant rib bones renders them

more difficult to fracture, requiring compression “front to back” or a “bending or

fulcruming” force on the bones and suggesting a squeezing of P.P.’s ribs in conjunction

with a shaking mechanism. For these reasons, Dr. Wells found the fractured ribs indicated

abuse. As for the severe brain injury P.P. presented with on arrival at the Helena hospital,

Dr. Wells and Dr. Dance agreed P.P. had been immediately injured sometime after her last

“normal interaction[.]” This timeline suggested P.P. endured the most acute injury between

the time Lerette conferred with Tim at 7:45 p.m. on September 28, 2021, when P.P. had

been observed crying, and when Tim began to notice P.P.’s lethargy later that night.

¶29 Proctor’s experts testified to perceived deficiencies in the differential diagnosis and

alternative interpretations of testing results. A clot in P.P.’s sagittal sinus vein, Dr. Julie

Mack (Dr. Mack) and Dr. Joseph Scheller (Dr. Scheller) both opined, could have also

caused P.P.’s brain injury but medical staff had not pursued a Magnetic Resonance

Venography. The State countered this with Dr. Wells’ testimony that she had rarely

encountered a sagittal vein clot and in those instances the clot resulted from abuse.

Dr. Mack noted P.P.’s cerebellum laceration might have actually been a cerebellar cleft

and thus the fluid in P.P.’s cerebellum was not caused by acceleration and deceleration.

Dr. Scheller opined the fluid was caused by the failed intubation attempt, an assertion Dr.

Coil, who had performed that procedure, categorically denied.

¶30 As for the rib and femur fractures, Proctor’s expert disagreed with the State’s

experts. Pediatric orthopedic surgeon Dr. Christopher Sullivan (Dr. Sullivan) believed the

rib fractures were older and possibly caused during birth. Dr. Sullivan would have treated

P.P.’s femur fractures through reconstructive surgery to reset her pelvis and then allowed

the bones to heal in a body cast, a treatment plan Dr. Wells disagreed with because the

fractures had occurred where the bone met cartilage and thus could heal on their own.

Dr. Sullivan also posited that P.P. had rickets caused by a Vitamin D deficiency leading to

brittle bones and Kalispell doctors had not tested for her Vitamin D levels. Dr. Dance did

not find evidence of rickets in his review of P.P.’s imaging.

¶31 Evidence obtained from Proctor’s cell phone was also admitted. Van Dyke testified

that data seized included Proctor’s use of the Pinterest application contemporaneously to

P.P.’s time in the hospital, Proctor’s searches for defense counsel while P.P. was in the

hospital, photographs of P.P. showing bruises and abrasions, and some correspondence

with Tim. The latter consisted of a photo of P.P. and an accompanying message that she

was “doing great” and a photo of P.P. outside. Other than noting he found her phone use

incongruent with the severity of P.P.’s ordeal, Van Dyke did not elaborate any further on

the meaning of Proctor’s phone activity.

¶32 At closing, the prosecutor reiterated the State’s theory of the case. She imagined

Proctor’s predicament on the evening of September 28: extrapolating the pressures of being

a new mom largely without Tim, the exhaustion of moving, and the anxiety clouding her

ability to continue in her career if not approved for remote work. The prosecutor

summarized P.P.’s life beginning at 7:00 a.m. on September 28 until she arrived at the

hospital in Helena at 7:00 a.m. on September 29: P.P. healthy despite a bruised eye at 3Rs;

Tim bringing her home and giving her a bottle that evening; P.P. crying while her parents

finished packing; P.P. quiet after Tim spoke to LeRette; P.P. consuming only some of her

evening bottle; P.P. unresponsive at 1:00 a.m. when Tim picked her up, and finally her

alarming condition on the morning of September 29. The prosecutor reminded the jury

that P.P.’s injuries were caused not by one instance of violent shaking, although that

appeared to cause the most significant brain injury. Rather, the prosecutor delineated, P.P.

had experienced numerous fractures and bruising over an extended period of time.

¶33 The prosecutor then characterized Proctor’s behavior once P.P. had been admitted

to the hospital. She first noted her preparation for the case as indicative of her own diligent

character because “when people are under pressure [. . . ] their character really comes out.”

This stood in contrast with Proctor’s text messages to Tim wherein she said the

intubated-P.P. was “doing great” rather than focusing on P.P.’s predicament. The

prosecutor cast aspersions on Proctor for using her phone to search for criminal defense

attorneys instead of researching the complex medical terminology presented from P.P.’s

doctors.

¶34 The jury returned a verdict finding Proctor guilty of assault on a minor. Proctor

moved for a new trial, which the court denied on April 3, 2023. On June 9, 2023, the court

sentenced Proctor to 20 years in the Montana Women’s Prison. Proctor now appeals.

STANDARDS OF REVIEW

¶35 We review evidentiary rulings for an abuse of discretion. State v. Pelletier, 2020

MT 249, ¶ 12, 401 Mont. 454, 473 P.3d 991 (citations omitted). A court abuses its

discretion when it is based on a clearly erroneous finding of fact, an erroneous conclusion

or application of law, or otherwise acts arbitrarily, without conscientious judgment or in

excess of the bounds of reason, resulting in substantial injustice. Pelletier, ¶ 12 (citation

omitted).

¶36 Whether or not a search warrant was overbroad is a legal conclusion which we

review de novo. State v. Graham, 2004 MT 385, ¶ 11, 325 Mont. 110, 103 P.3d 1073.

¶37 Generally, this Court will not address issues of prosecutorial misconduct pertaining

to a prosecutor’s statements not objected to at trial. State v. Haithcox, 2019 MT 201, ¶ 23,

397 Mont. 103, 447 P.3d 452; see also State v. Devereaux, 2022 MT 130, ¶ 21, 409 Mont.

177, 512 P.3d 1198; State v. Miller, 2022 MT 92, ¶ 10, 408 Mont. 316, 510 P.3d 17 (failure

to contemporaneously object to an asserted error generally constitutes a waiver of the right

to seek appellate review). However, this Court, in our discretion, may review an

unpreserved assertion of error under the common law plain error doctrine. Devereaux,

¶ 21; Miller¸ ¶ 10.

¶38 Claims of ineffective assistance of counsel present mixed questions of law and fact

which this Court reviews de novo. State v. Weber, 2016 MT 138, ¶ 11, 383 Mont. 508,

373 P.3d 26.

DISCUSSION

¶39 Issue One: Whether the District Court erred in admitting expert testimony related

to “Shaken Baby Syndrome.”

¶40 On appeal, Proctor argues the reasoning and methodology supporting SBS is not

scientifically reliable or accurate and that recent modeling has not validated the hypothesis.

Moreover, she argues that P.P.’s case presents a non-impact mechanism and that the State

had not adequately demonstrated the reliability of non-impact biomechanical principles of

an SBS diagnosis. The State counters that her argument only obliquely captures the

prosecution’s theory of the case, which relied on a diagnosis of NAT resulting from several

possible mechanisms, including shaking P.P., and manifested in multiple severe injuries,

including rib and femur fractures and injuries to her neck, indicating conduct beyond the

classical non-impact SBS hypothesis.

¶41 Proctor and amicus, the Montana Innocence Project, rely on a New Jersey case to

cast doubt on the reliability of an SBS diagnosis. There, the court held that the SBS

hypothesis, also referred to as AHT, was unreliable due to a “lack of biomedical support[.]”

New Jersey v. Nieves (Nieves I), 302 A.3d 595, 620 (N.J. Super. Ct. App. Div. 2023). The

trial court barred the admission of expert testimony related to SBS/AHT in two separate

criminal prosecutions and the state appealed. Nieves I, 302 A.3d at 599. In a consolidated

appeal, the Appellate Division of the New Jersey Superior Court affirmed both decisions

on the basis that, although the pediatric medical community accepted the validity of

SBS/AHT, the theory itself “integrates multiple scientific disciplines” and thus its

admissibility required the proponent of SBS/AHT to “establish cross-disciplinary

validation to establish reliability.” Nieves I, 302 A.3d at 599. The expert testimony

presented at the preliminary evidentiary hearings provided only a consensus of the existing

“controversy surrounding the theory that the biomechanical principles underlying

SBS/AHT actually supported the conclusion that shaking only can cause injuries associated

with SBS/AHT.” Nieves I, 302 A.3d at 599. The specific “triad of symptoms” supporting

an SBS/AHT diagnosis included subdural hemorrhages, severe retinal hemorrhages, and

encephalopathy, but these alone were “not diagnostic”; rather, “the combination of

findings, in the absence of pathology,” provides the final diagnosis. Nieves I, 302 A.3d

at 603.

¶42 The New Jersey Supreme Court affirmed this decision, holding that the expert

testimony failed the general acceptance standard established in Frye v. United States, 293

F. 1013 (D.C. Cir. 1923).6 State v. Nieves (Nieves II), 345 A.3d 1127, 1132 (N.J. 2025).

The Frye standard requires expert testimony “not only be reliable, but its proponent must

establish that the information to which the expert will testify is generally accepted in the

relevant community to which the expertise belongs.” Nieves II, 345 A.3d at 1132. The

defense experts in one of the underlying prosecutions evaluated on appeal “emphasized

[the] lack of general acceptance of SBS/AHT” across relevant scientific disciplines.

Nieves II, 345 A.3d at 1170. Thus, evidence of acceptance by the medical community

notwithstanding, the State had “not met its burden of establishing general acceptance [of

SBS/AHT] in the relevant scientific communities because the research, studies, and

testimony presented at the [Frye] hearing reflect a lack of general acceptance by many in

the biomechanical community regarding SBS/AHT without impact.” Nieves II, 345 A.3d

at 1171-72.

¶43 However, Montana rejected the “general acceptance rule” aspect of the Frye test

more than four decades ago because it no longer conformed “with the spirit of the new

New Jersey has since abandoned the Frye standard. Nieves II, 345 A.3d at 1132 n.1 (citing New Jersey v. Olenowski, 289 A.3d 456, 459 (N.J. 2023)).

rules of evidence.” Barmeyer v. Mont. Power Co., 202 Mont. 185, 193, 657 P.2d 594, 598

(1983) (citations omitted), overruled on other grounds Martel v. Mont. Power Co, 231

Mont. 96, 103, 752 P.2d 140, 145 (1988). “‘Absolute certainty of result or unanimity of

scientific opinion is not required for admissibility.’” Barmeyer, 202 Mont. at 193, 657

P.2d at 598 (quoting United States v. Baller, 519 F.2d 463, 466 (4th Cir. 1975)). Granted,

scientific advancements must have their “‘first day in court [. . .] [a]nd court records are

full of the conflicting opinions of doctors, engineers, and accountants, to name just a few

of the legions of expert witnesses . . . [but] . . . [u]nless an exaggerated popular opinion of

the accuracy of a particular technique makes its use prejudicial or likely to mislead the jury,

it is better to admit relevant scientific evidence in the same manner as other expert

testimony and allow its weight to be attacked by cross-examination and refutation.’”

Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598 (quoting Baller, 519 F.2d at 466).

Cross-examination is “the shield to guard against unwarranted opinions[.]” Barmeyer, 202

Mont. at 194, 657 P.2d at 598-99 (citation omitted).

¶44 Generally, all relevant evidence is admissible. State v. Santoro, 2024 MT 136, ¶ 19,

417 Mont. 92, 551 P.3d 822 (citing M. R. Evid. 402). Montana Rules of Evidence 701-705

additionally govern the admission of opinion and expert testimony. Santoro, ¶ 19. Rule

702 provides, “[i]f scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify thereto in the

form of an opinion or otherwise.” The clause “or otherwise[,]” in the context of Rule 702,

refers to testimony provided by an expert witness not necessarily “in the form of opinion,

but which informs the jury so they may render the correct decision.” M. R. Evid. 702,

Commission Comments; State v. Jay, 2013 MT 79, ¶ 27, 369 Mont. 332, 298 P.3d 396;

State v. Cassill, 70 Mont. 433, 448, 227 P. 49, 55 (1924). “To restate this rule, if a reliable

field helps the trier of fact, and the court deems the witness qualified as an expert, then he

may testify.” State v. Clifford, 2005 MT 219, ¶ 33, 328 Mont. 300, 121 P.3d 489 (emphasis

in original). This Court has repeatedly stated the test for admissibility of expert testimony

is whether the matter is sufficiently beyond common experience that the opinion of the

expert will assist the trier of fact to understand the evidence or to determine a fact at issue.

Santoro, ¶ 20 (citing State v. Ayers, 2003 MT 114, ¶ 36, 315 Mont. 395, 68 P.3d 768; State

v. Southern, 1999 MT 94, ¶ 49, 294 Mont. 225, 980 P.2d 3).

¶45 “Questions concerning expert testimony’s reliability are threefold under [Rule 702]:

(1) whether the expert field is reliable, (2) whether the expert is qualified, and (3) whether

the qualified expert reliably applied the reliable field to the facts.” Clifford, ¶ 28. First,

the trial court must determine whether the subject matter of the testimony is one that

requires expert testimony. Santoro, ¶ 20; Ayers, ¶ 36; Southern, ¶ 49. Second, the court

must determine whether the particular witness is qualified as an expert to give an opinion

in the particular area on which they propose to testify. Santoro, ¶ 20; Ayers, ¶ 36; Southern,

¶ 49. The district court determines the first two questions of our Rule 702 inquiry while

the determination of the third prong belongs to the jury following “‘[v]igorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden

of proof[.]’” Clifford, ¶ 28 (quoting Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579,

596, 113 S. Ct. 2786, 2798 (1993)).

¶46 “Before a district court may allow an expert to express an opinion, an evidentiary

foundation must be laid to demonstrate that the expert has adequate knowledge, by training

or education, and sufficient factual information on which to base an opinion.” Wheaton v.

Bradford, 2013 MT 121, ¶ 16, 370 Mont. 93, 300 P.3d 1162 (citing Cottrell v. Burlington

N. R.R. Co., 261 Mont. 296, 301, 863 P.2d 381, 384-85 (1993); Hulse v. State, 1998 MT

108, ¶ 48, 289 Mont. 1, 961 P.2d 75). “We have stated that ‘it is better to admit relevant

scientific evidence in the same manner as other expert testimony and allow its weight to be

attacked by cross-examination and refutation.’” Wheaton, ¶ 16 (quoting Hulse, ¶ 53).

¶47 In pursuit of her argument, Proctor relies on several cases in which the scientific

foundation behind preliminary breath tests (PBT) was found to be unreliable to cast doubt

on the NAT diagnosis and, by extension, Proctor’s conviction. State v. Strizich, 286 Mont.

1, 12, 952 P.2d 1365, 1372 (1997); State v. Weldele, 2003 MT 117, ¶¶ 57-58, 315 Mont.

452, 69 P.3d 1162; State v. Crawford, 2003 MT 118, ¶ 13, 315 Mont. 480, 68 P.3d 848. In

those cases, we held that “PBT results obtained under field conditions are not admissible

at trial as evidence of [Blood Alcohol Content (BAC)] without a showing that the results

are demonstrably accurate and reliable.” Crawford, ¶ 11 (citing Strizich, 286 Mont. at 12,

952 P.2d at 1372; Weldele, ¶¶ 57-58). No scientific research had been advanced between

Strizich and Crawford to counteract our skepticism of the use of PBTs as substantive

evidence, which only estimate BAC. Crawford, ¶¶ 11, 13.

¶48 Here, the substantive evidence presented by the State through expert witnesses and

P.P.’s treating physicians was based on the process of making a medical differential

diagnosis. The evidence here demonstrates the medical conclusions resulted from a

differential diagnosis in which other causes of P.P.’s presenting symptoms were

eliminated. The process of making a medical differential diagnosis is not novel scientific

evidence. State v. Price, 2007 MT 269, ¶ 24, 339 Mont. 399, 171 P.3d 293. The testifying

physicians, both as experts and as P.P.’s treating doctors, possessed the proper credentials

to assess the injuries present in P.P. The court’s evidentiary ruling noted that P.P.’s injuries

consisted not only of the controversial SBS/AHT triad of retinal hemorrhages, brain

swelling, and brain bleeding, but presented a variety of injuries, including injuries to where

her spine meets the base of her skull, a broken femur, broken ribs, a broken toe, bruising,

and abrasions. P.P.’s rib fractures could have been caused by gripping her infant body and

shaking her. Proctor’s assertion that shaking alone could not cause the triad without a level

of force also causing significant neck injuries finds no purchase in the instant case because

P.P., indeed, had a significant neck injury. P.P.’s neck injury and her additional injuries

distinguish Proctor’s case from the convictions secured based only on the SBS triad

presented in Nieves II.

¶49 The State provided evidence of the reliability of making a medical diagnosis through

the process of the differential diagnosis. Proctor’s arguments to the contrary essentially

attack the weight of that evidence. The District Court correctly determined the reliability

of the relevant expert field and the qualifications of the expert witnesses under Rule 702,

and the jury properly considered evidence of P.P.’s injuries, the timeline of when those

injuries occurred, and who was present with P.P. when she was most likely afflicted. The

District Court did not abuse its discretion in allowing expert testimony related to NAT.

¶50 Issue Two: Whether the District Court erred by not suppressing evidence obtained

under an impermissible general warrant.

¶51 Montana provides for a robust right to privacy that “shall not be infringed without

the showing of a compelling state interest.” Mont. Const. art II, § 10. The United States

Constitution and the Montana Constitution protect against unreasonable searches and

seizures. U.S. Const. amend. IV; Mont. Const. art. II, § 11. A warrant to search must be

based upon probable cause and specifically describe the place, person, and items to be

seized. U.S. Const. amend. IV; Mont. Const. art. II, § 11; State v. Mefford, 2022 MT 185,

¶ 10, 410 Mont. 146, 517 P.3d 210. Article II, Section 11, of the Montana Constitution

specifically provides for the people’s security in their “electronic data and

communications.” See also Montana Constitutional Convention, Committee Report

February 23, 1972, Vol. II, 632 (discussing a heightened right to privacy in anticipation of

future technological advancements).

¶52 General warrants lacking in particularity are forbidden. State v. Seader, 1999 MT

290, ¶ 11, 297 Mont. 60, 990 P.2d 180 (citing Coolidge v. New Hampshire, 403 U.S. 443,

467, 91 S. Ct. 2022, 2038 (1971)). The “manifest purpose of this particularity requirement

was to prevent general searches” and prevent the issuing of a warrant not “carefully

tailored” to the probable cause justifying the search. Maryland v. Garrison, 480 U.S. 79,

84, 107 S. Ct. 1013, 1016 (1987). Thus, under the particularity requirement, a warrant

must “clearly state what is sought.” State v. Neiss, 2019 MT 125, ¶ 57, 396 Mont. 1, 443

P.3d 435 (quotation omitted). The required level of specificity varies depending on the

circumstances of the case and the nature of the evidence sought by the State. Seader, ¶ 13.

¶53 This Court has already recognized a reasonable expectation of privacy in cell phone

data. State v. LeDeau, 2024 MT 305, ¶ 9, 419 Mont. 355, 560 P.3d 1195 (citing Mefford,

¶ 15). “Modern cell phones, as a category, implicate privacy concerns far beyond those

implicated by the search” of a physical location due to the sheer quantity and quality of

data these “minicomputers” often contain. Riley v. California, 573 U.S. 373, 393, 134

S. Ct. 2473, 2488-89 (2014). Contemporary cell phones “‘have become storage devices

for all manner of private information’ and are a portal into a person’s life which may

contain hundreds of thousands of pictures and information about a person’s ‘health and

activity, dating, video streaming, mobile shopping, banking, and password storage.’”

LeDeau, ¶ 9 (quoting Mefford, ¶ 15). A cell phone search “would typically be far more

exhaustive than a search of one’s home as it contains a broad array of private information

never found in a home in any form.” LeDeau, ¶ 9 (citing Mefford, ¶ 15; Riley, 573 U.S. at

396-97, 134 S. Ct. at 2491).

¶54 Given the sheer volume of information available from a search of a cell phone, both

in terms of the content stored locally on the device and digitally through connected

applications, the specificity requirements under the right to privacy are critical. In Mefford,

a probation officer suspected Mefford had violated his curfew based on data received from

Mefford’s GPS tracker. Mefford, ¶¶ 2-3. Mefford claimed that he needed to venture into

the parking lot of his apartment building to connect his cell phone to the internet and

communicate with his daughter. Mefford, ¶ 3. He consented to his probation officer

accessing those relevant text messages, but the officer did not believe the recipient was in

fact Mefford’s daughter. Mefford, ¶ 4. In an effort to probe this suspicion, the officer

navigated to the phone’s digital photo gallery to compare the recipient’s profile picture

with a photograph of Mefford’s daughter and, in doing so, discovered suspected child

sexual abuse materials. Mefford, ¶ 4. A later forensic search of the device confirmed the

presence of those materials. Mefford, ¶ 5. In the subsequent prosecution for Sexual Abuse

of Children, Mefford unsuccessfully moved to suppress the images, contending the

officer’s search unlawfully exceeded the extent of Mefford’s consent. Mefford, ¶¶ 6-7.

This Court reversed on the basis that, by exceeding the scope of Mefford’s consent, the

search was unreasonable and unlawful. Mefford, ¶ 45. Likewise, we have found

sentencing conditions permitting the search of “all areas of all electronic devices[,]” in the

absence of any evidence of the use of the device in connection with the underlying offense,

as impermissibly overbroad. LeDeau, ¶ 9 (citing Mefford, ¶ 15; Riley, 573 U.S. at 396-97,

134 S. Ct. at 2491) (emphasis in original).

¶55 Proctor and the State both direct our attention to Seader, where a search warrant for

a vehicle authorized the seizure of the “proceeds of drug sales[,]” including “anything else

of value furnished or intended to be furnished in the exchange for the evidence or

contraband relating to the use, sale, or manufacture of dangerous drugs.” Seader, ¶ 7.

Officers searching for Seader instead found his van and, after a positive “dog sniff,”

impounded the vehicle. Seader, ¶ 6. The search of the impounded vehicle, based upon a

second warrant asserting probable cause related to the offense of drug possession, revealed

an All-Terrain Vehicle (ATV) covered by a tarp. Seader, ¶ 8. Officers checked the ATV’s

vehicle identification number and discovered the ATV was stolen, leading to a felony theft

charge against Seader. Seader, ¶ 8. This Court reversed the denial of Seader’s motion to

suppress, reasoning that the second “search warrant for Seader’s van was not sufficiently

particular with respect to the items subject to seizure” because the “catchall” phrase

“anything else of value” rendered the warrant facially overbroad. Seader, ¶¶ 8, 16. “We

refuse[d] to compromise Fourth Amendment rights and those guaranteed by Article II,

Section 11, of the Montana Constitution for the sake of efficient law enforcement[.]”

Seader, ¶ 15. Particularity requires that “nothing is left to the discretion of the officer

executing the warrant.” Seader, ¶ 11 (citing Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct.

506, 511 (1965)). Instead, the Seader warrant provided officers with “unbridled discretion

to engage in precisely what the particularity requirement seeks to prevent—a general,

exploratory rummaging in Seader’s belongings.” Seader, ¶ 14.

¶56 The State asserts Proctor’s reliance on Seader is misplaced as the “including, but

not limited to” language and associated search categories in the present search warrant are

not equivalent to the Seader catchall “anything else of value[.]” Seader, ¶ 15. We disagree.

In the instant case, the warrant to search Proctor’s cell phone is likewise overbroad and

unparticularized as a matter of law. The warrant provided for law enforcement to search

the entirety of Proctor’s phone, with the only exclusions applying to communications with

legal or religious counsel. With only these meager guardrails, the warrant otherwise

allowed law enforcement to obtain “all data.” This data included but was “not limited to”

location history, internet history, all digital media, browsing history, and the

communication history accessible on the cell phone. The search warrant did not provide

sufficient guidance to the officers to “distinguish[] between items that could and could not

be seized[.]” Seader, ¶ 14. Instead, the warrant granted unfettered discretion to the officers

to comb through Proctor’s entire digital life. There must be particularization set forth in

the warrant application of how the phone may lead to discoverable evidence of the offense

for which there is probable cause. Otherwise, a warrant could issue for a phone belonging

to anyone suspected of having committed a crime.

¶57 The Mefford and Seader standards, read together, delineate the specificity

requirements for warrants. Seader broadly articulates the particularity requirement.

Seader, ¶ 14. The Special Concurrence seeks to distinguish cell phone searches from the

vehicle search in Seader. Special Concurrence, ¶ 97. However, this distinction is

immaterial to an inquiry as to whether “catchall” language renders a warrant impermissibly

overbroad: the issue turns on the specificity of the warrant as to what is to be

searched—be it a house, a vehicle, or a cell phone. Seader, ¶ 13. Moreover, Mefford

provides the principle that mere access to a phone does not provide law enforcement with

carte blanche authority to search all aspects of the device. Mefford, ¶ 45. This comports

with the caution needed to protect against rummaging through a cell phone and the virtually

limitless information contained therein enunciated by the United States Supreme Court in

Riley, 573 U.S. at 396-97, 134 S. Ct. at 2491, and likewise espoused by this Court in

Ledeau, ¶¶ 9, 13.

¶58 The Special Concurrence draws our attention to several cases wherein purportedly

broader warrants permissibly granted access to electronic devices which survived

constitutional scrutiny. Special Concurrence, ¶¶ 98-102 (citing United States v. Richards,

659 F.3d 527 (6th Cir. 2011); United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009);

United State v. Adjani, 452 F.3d 1140 (9th Cir. 2006); Nebraska v. McGovern, 974 N.W.2d

595 (Neb. 2022)). The circumstances of these cases are factually distinguishable from the

instant case because each of these cases involved crimes committed either with or on

electronic devices using digital data. See Seader, ¶ 13 (citations omitted) (“The specificity

required of a search warrant may vary depending on the circumstances of the case and the

type of items involved. Generic categories or general descriptions of items are not

necessarily invalid if a more precise description of the items to be seized is not possible.”).

¶59 In Richards, the defendant was accused of being “a sophisticated pornography

entrepreneur, operating at least a dozen websites that contained sexually explicit conduct

involving adults and minors, pornographic images of boys under eighteen, and

advertisements for links to other child pornography sites.” Richards, 659 F.3d at 531. He

additionally operated “other pornography-related websites and child pornography sites”

which he managed using elaborate online marketing and advertising techniques. Richards,

659 F.3d at 531. “To manage the large amount of computer data, Richards kept several

computers in his home . . . and utilized multiple servers in California that contained

approximately one terabyte . . . of information” which he accessed and uploaded child

pornography from an “internet protocol address tied to his home[.]” Richards, 659 F.3d

at 531. Suffice to say, the crimes for which Richards was accused were closely linked to

his use of the searched devices because these were crimes committed on the internet and

the search warrant was specifically related to his operation of those illicit websites from

his devices. Richards, 659 F.3d at 533-34.

¶60 Burgess concerned an investigation into drug use and possession in a mobile home

following a traffic stop and positive canine alert. Burgess, 576 F.3d at 1082. During the

search, officers uncovered drugs and seized a laptop and two hard drives. Burgess, 576

F.3d at 1083. Law enforcement searched the hard drives for evidence “which would tend

to show conspiracy to sell drugs,” such as “trophy photos” of individuals “holding the

controlled substance in front of a stack of money.” Burgess, 576 F.3d at 1083-84. While

previewing possible images for drug activity, officers discovered child sexual abuse

material and paused the search to “secure[] a new warrant authorizing a search for evidence

of child sexual exploitation.” Burgess, 576 F.3d at 1084. In affirming the denial of

Burgess’s motion to suppress the search of his computer and hard drives, the Tenth Circuit

reasoned the devices could be seized under the automobile exception to the Fourth

Amendment and, dispositive for our purposes here, the subsequent initial search warrant

was of a sufficiently narrow scope limited to those digital records of “drug related

evidence[,]” specifically the “trophy photos” referenced in the officer’s supporting

affidavit. Burgess, 576 F.3d at 1092. The particularity of the warrant was further supported

by “the executing officer’s . . . understanding of and respect for the narrow scope

authorized by the warrant” as demonstrated by his immediate cessation of the search

pending a new warrant once the child exploitation material was discovered. Burgess, 576

F.3d at 1091-92. The meticulous attention to the proper search procedures and safeguards

in Burgess distinguishes the device search there from the instant case.

¶61 The devices searched in Adjani were related to an internet extortion scheme wherein

the defendant conspired over email—using the same email address listed on the extortion

letter sent to the victim. Adjani, 452 F.3d at 1143. Adjani had threatened to expose private

corporate data, including customer payment details, unless his intended victim paid a

ransom. To demonstrate his ability to deliver on his threats, Adjani provided previews of

his ill-gotten classified data. Adjani, 452 F.3d at 1143. In reversing the trial court’s

suppression of the fruits of the search of Adjani’s and a coconspirator’s computers, the

Ninth Circuit reasoned “[t]he government needed only to satisfy the magistrate judge that

there was probable cause to believe that evidence of the crime in question—here

extortion—could be found on computers accessible to Adjani in his home, including—as

it developed—[the coconspirator’s] computer.” Adjani, 452 F.3d at 1147. The warrant

properly detailed “the extortion scheme and the instrumentalities of the crime[.]” Adjani,

452 F.3d at 1147 (emphasis added).

¶62 McGovern similarly involved the valid search of a cell phone suspected of being

used in the crime charged because the defendant, accused of voyeuristically viewing a

woman showering in her apartment, was also suspected of using his phone to “capture[]

photographs and[/]or videos of [the victim] in a state of undress.” McGovern, 974 N.W.2d

at 604. The phone, dropped by the defendant as he fled when confronted by the victim’s

partner, could also contain evidence of the suspect’s identity. McGovern, 974 N.W.2d at

605. The warrant authorized a search for evidence of McGovern’s unlawful intrusion, a

crime defined as “intruding upon another in a place of solitude or seclusion[,]”

encompassing “photographing or filming the intimate area of another without his or her

knowledge or consent.” McGovern, 974 N.W.2d at 617. Thus, the instrumentality of this

particular crime could have included a cell phone, such as the one recovered from

McGovern’s flight.

¶63 On the other hand, language authorizing the search of “any and all files” on a

defendant’s cell phone failed the particularity requirement. United States v. Winn, 79

F. Supp. 3d 904, 917 (S.D. Ill. 2015); Special Concurrence, ¶ 103. There, police lacked

probable cause that “everything on the phone was evidence of the crime of public

indecency.” Winn, 79 F. Supp. 3d at 919. Winn was accused of photographing children at

a local pool while rubbing his genitals through his swim trunks. Winn, 79 F. Supp. 3d at

909. Officers promptly began the investigation by interviewing Winn and obtaining his

cell phone the day after the incident on June 21, 2014. Winn, 79 F. Supp. 3d at 910.

However, the supervising detective did not immediately apply for a warrant to search the

phone and, after days off, scheduled trainings, and other investigatory obligations, a

warrant, premised on an allegation of public indecency and containing “unabridged

template” language, was not obtained until June 30. Winn, 79 F. Supp. 3d at 910-11, 922.7

The subsequent search revealed child sexual abuse material and Illinois charged Winn with

one count of public indecency and nearly two dozen counts related to child pornography.

Winn, 79 F. Supp. 3d at 911-12. “Based on the complaint supporting the search warrant,

there was probable cause to believe that only two categories of data could possibly be

evidence of the crime: photos and videos[,]” and neither facts learned during the

In Winn, “the complaint for the search warrant presented probable cause to search the phone for evidence of public indecency, but the warrant authorized a search of evidence of an entirely different crime: disorderly conduct.” Winn, 79 F. Supp. 3d at 916. The court ultimately determined this mistake did not render the warrant facially defective because (1) Winn conceded that probable cause existed to issue the warrant for public indecency and (2) the “facts alleged in the complaint were sufficient to establish probable cause to believe that Winn’s cell phone contained evidence of disorderly conduct” because Winn’s conduct also met the definition of that offense under a “breach of peace” theory. Winn, 79 F. Supp. 3d at 917.

investigation nor the investigating detectives’ training and experience supported a

reasonable belief that “the calendar, phonebook, contacts, [text and media messages,]

emails, ringtones, audio files, all call logs, installed application data, GPS information,

WIFI information, internet history and usage, or system files were connected with Winn’s

act of public indecency.” Winn, 79 F. Supp. 3d at 919-20. Thus, the court concluded, the

warrant “authorized the police to seize the entirety of the phone and rummage through

every conceivable bit of data, regardless of whether it bore any relevance whatsoever to

the criminal activity at issue.” Winn, 79 F. Supp. 3d at 922.

¶64 Finally, the Special Concurrence relies upon Richardson v. Maryland, 282 A.3d 98

(Md. Ct. of App. 2022), a case very much on point to the facts here. Special Concurrence,

¶ 104. Richardson, who conditionally pled guilty to conspiracy to commit robbery and

possession of a handgun, appealed the denial of his motion to suppress the warranted search

of a cell phone he abandoned at the scene of an altercation. Richardson, 282 A.3d at 105.

Although the denial was ultimately affirmed on the basis investigating officers had acted

in good faith, the court concluded the warrant failed the particularity requirement because

the warrant authorized the search of the entire phone without temporal restrictions.

Richardson, 282 A.3d at 123-24. Richardson was alleged to have obtained the at-issue

phone in a separate robbery. Richardson, 282 A.3d at 106. Rather than focus on the

particular data or applications related to the robbery of the phone, the warrant

impermissibly provided unfettered access to all aspects of the device. Richardson, 282

A.3d at 123. “While reasonable minds may differ at times on whether a warrant is

sufficiently particular, one thing is clear: given the privacy interests at stake, it is not

reasonable for an issuing judge to approve a warrant that simply authorizes police officers

to search everything on a cell phone.” Richardson, 282 A.3d at 124.

¶65 In sum, Richards, Adjani, and McGovern all concerned crimes which occurred on

cell phones or computers and search warrants tailored to that effect. Burgess saw

investigators seek a supplementary warrant once the initial search revealed evidence of

additional crimes. The defective warrants in Winn and Richardson prove pertinent to the

instant case in that the warrants granted unfettered access to devices with attenuated

connections to the crimes charged.

¶66 “Crime has changed, as have the means of law enforcement[.]” Steagald v. United

States, 451 U.S. 204, 217 n.10, 101 S. Ct. 1642, 1650 n.10 (1981) (citing Katz v. United

States, 389 U.S. 347, 352-53, 88 S. Ct. 507, 511-12 (1967)). Nevertheless, our

constitutional protection from unreasonable searches and seizures abides:

While the common law thus sheds relatively little light on the narrow

question before us, the history of the Fourth Amendment strongly suggests

that its Framers would not have sanctioned the instant search. The Fourth

Amendment was intended partly to protect against the abuses of general

warrants that had occurred in England and of the writs of assistance used in

the Colonies. See Payton v. New York, 445 U.S. [573,] 608-09, 100 S. Ct.

[1371,] 1391-92 (1980) (White, J., dissenting); Boyd v. United States, 116

U.S. 616, 624-29, 6 S. Ct. 524, 529-32 (1886); [Nelson B.] Lasson, The

History and Development of the Fourth Amendment to the United States

Constitution 13-78 (1937). The general warrant specified only an offense—

typically seditious libel—and left to the discretion of the executing officials

the decision as to which persons should be arrested and which places should

be searched. Similarly, the writs of assistance used in the Colonies noted

only the object of the search—any uncustomed goods—and thus left customs

officials completely free to search any place where they believed such goods

might be. The central objectionable feature of both warrants was that they

provided no judicial check on the determination of the executing officials

that the evidence available justified an intrusion into any particular home.

Stanford v. Texas, 379 U.S. 476, 481-85, 85 S. Ct. 506, 509-12 (1965). An

arrest warrant, to the extent that it is invoked as authority to enter the homes

of third parties, suffers from the same infirmity. Like a writ of assistance, it

specifies only the object of the search [. . .] and leaves to the unfettered

discretion of the police the decision as to which particular homes should be

searched. We do not believe the Framers of the Fourth Amendment would

have condoned such a result.

Steagald, 451 U.S. at 220, 101 S. Ct. at 1651-52. Here, the warrant specified the device to

be searched but suffered the infirmity of leaving unfettered discretion to the officers to

rummage through the entirety of a device containing the entirety of Proctor’s digital life.

That the fruits harvested from this search—banal Pinterest activity, attempts at

communicating reassurances to Tim during some of the most heightened moments of P.P.’s

ordeal—had such little bearing on the actual trial and the State’s theory of guilt underscores

the necessity of our constitutional protections against such unreasonable rummaging. The

Framers, in 1789 and 1972, would not have condoned such an undisciplined intrusion into

Proctor’s private life and, accordingly, neither do we.

¶67 However, our analysis does not stop at this analytical juncture because the

admission of evidence obtained through the overbroad search warrant was ultimately

harmless error not meriting reversal. “A cause may not be reversed by reason of any error

committed by the trial court against the convicted person unless the record shows the error

was prejudicial.” Section 46-20-701(1), MCA. Under our harmless error analysis, we first

look to “whether the error was a structural error or a trial error.” State v. Lake, 2019 MT

172, ¶ 40, 396 Mont. 390, 445 P.3d 1211 (citing State v. Van Kirk, 2001 MT 184, ¶¶ 37,

41, 306 Mont. 215, 32 P.3d 735). Structural error “affects the framework within which the

trial proceeds, rather than simply an error in the trial process itself, and is automatically

reversible.” Lake, ¶ 40 (citing Van Kirk, ¶¶ 38-39). Conversely, trial error is “the type of

error that typically occurs during the presentation of the case to the jury.” Lake, ¶ 40 (citing

Van Kirk, ¶ 40; § 46-20-701(1), MCA). Once we establish the error is not structural, we

examine whether the State has “demonstrate[d] that the error at issue was not prejudicial

to the defendant.” Lake, ¶ 40 (citing Van Kirk, ¶ 42). To satisfy this second step of our

harmless error analysis, the State must “‘demonstrate that there is no reasonable possibility

that the inadmissible evidence might have contributed to the [defendant’s] conviction.’”

Lake, ¶ 40 (quoting Van Kirk, ¶ 47). Here, the admission of evidence obtained through the

overbroad search warrant constituted trial, not structural, error. Lake, ¶ 40; Van Kirk, ¶ 40.

The burden thus shifts to the State to prove Proctor was not prejudiced by the admission of

the tainted evidence.

¶68 The cell phone content admitted at trial consisted of photographs of P.P., including

more than twenty photographs documenting her injuries; Proctor’s web history; and text

messages, including communication with Tim during the beginning of P.P.’s treatment at

the Kalispell hospital. The State asserts this tainted evidence was cumulative or had a

minimal impact during the trial. Proctor argues the use of the cell phone data contributed

to the jury’s verdict finding her guilty.

¶69 The photographs admitted at trial showed various bruises and abrasions on P.P.

Thus, the photographs were cumulative to the testimony of multiple witnesses who testified

to seeing these injuries. The State further characterizes these pictures, which depicted only

P.P.’s bruises and abrasions, as showing bodily injury, not the serious bodily injury Proctor

was convicted of inflicting on P.P. The latter category of injuries—the bone fractures and

brain injuries—were not proven at trial through the photographs obtained from Proctor’s

cell phone. We agree this error did not contribute to Proctor’s conviction.

¶70 As for Proctor’s web history, this, too, constituted cumulative evidence. The State

notes, based on Tim’s testimony, that Proctor’s attorney instructed Tim to take screenshots

of the Owlet data while P.P. was in the hospital in October 2021 and Proctor’s medical

expert witness testified to being hired by her defense counsel at approximately the same

time. Thus, the tainted evidence served to supplement evidence of when Proctor sought

legal counsel which was admitted independently of the data obtained from her cell phone.

Finally, the two text messages and the Pinterest activity admitted were likewise cumulative:

the State used these to buttress properly admitted evidence of Proctor’s behavior while P.P.

was in crisis, properly ascertained through the witnesses who interacted with her at the

time. The State’s claim that these errors were harmless finds support in our review of the

record, from which we conclude the tainted evidence admitted from the cell phone did not

contribute to Proctor’s conviction.

¶71 Contrary to the Concurrence and Dissent, ¶ 110, our analysis here comports with

Van Kirk. The tainted evidence was limited in application and provided scarce additional

context to the events leading to P.P.’s arrival and stay at the hospitals in Helena and

Kalispell. We have catalogued the tainted evidence obtained from an unlawful warrant

offered by the State and found cumulative analogues in other properly admitted evidence.

The bulk of the evidence admitted at trial detailing the State’s theory of Proctor’s guilt

centered specifically on the 15-minute window in which Tim left P.P., then crying, on

blankets on the floor while he spoke with his boss in the driveway, before returning inside

to find P.P. in her car seat, now docile and injured. The State’s expert witnesses offered a

timeline for these injuries explaining the delayed onset time for P.P.’s most severe

symptoms following an acute incident of physical trauma. This evidence was ultimately

untainted by unlawful warrants or other irregularities calling into question the fairness of

Proctor’s trial writ large.

¶72 The warrant to search Proctor’s cell phone was an unlawfully overbroad and

unparticularized general warrant because the warrant failed to provide sufficient guidance

to investigating officers and instead granted unfettered discretion to rummage through the

voluminous data contained within her cell phone. However, the limited evidence from the

cell phone admitted at trial was ultimately harmless error.

¶73 Issue Three: Whether the prosecutor violated Proctor’s right to a fair trial with

impermissible statements related to Proctor’s character.

¶74 Proctor points to the repeated references during the State’s closing argument to her

search for legal counsel and phone history, through testimony elicited from Van Dyke, and

from statements made by the prosecutor, as undermining her right to a fair trial. Proctor

made no objections to the State’s comments made during closing argument. Thus, Proctor

asserts errors implicating her fundamental right to a fair trial should be reviewed under this

Court’s plain error standard.

¶75 We apply the plain error doctrine sparingly, on a case by case basis. Devereaux,

¶ 41. We may invoke plain error review in situations where (1) the defendant asserts an

error implicating a fundamental right and (2) failing to review the claimed error may result

in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness

of the trial or proceedings, or compromise the integrity of the judicial process. Devereaux,

¶ 21 (citing State v. Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126; State v.

Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79).

¶76 Criminal defendants are guaranteed the right to a fair trial by a jury. Haithcox, ¶ 24

(citing U.S. Const. amend. VI; Mont. Const. Art. II, § 24; State v. Hayden, 2008 MT 274,

¶ 27, 345 Mont. 252, 190 P.3d 1091). Prosecutorial misconduct may be grounds for

reversing a conviction and granting a new trial if the conduct deprives the defendant of a

fair and impartial trial. Haithcox, ¶ 24 (citation omitted). This Court will not “presume

prejudice from the alleged prosecutorial misconduct” and the defendant bears the burden

of proving the challenged conduct violated their substantial rights, beyond undesirability

and even universal condemnation. Haithcox, ¶ 24 (citing Darden v. Wainwright, 477 U.S.

168, 181, 106 S. Ct. 2464, 2471 (1986)). Thus, our analysis of such a claim turns on

whether a prosecutor’s comments “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Haithcox, ¶ 24 (citing Darden, 477 U.S. at

181, 106 S. Ct. at 2471).

¶77 Turning first to Van Dyke’s testimony, we have already held the inadmissible

evidence resulting from the overbroad search warrant on Proctor’s cell phone was harmless

error. Van Dyke briefly testified to the limited information obtained from Proctor’s phone,

namely that she had used the Pinterest application and searched for defense counsel during

an incredibly acute phase of P.P.’s ordeal. Our review of the trial transcript shows that

Van Dyke provided a brief catalogue of the data seized from Proctor’s phone, including

her searches for defense attorneys, but did not elaborate on what “stood out” with this

information nor did he provide any hypothesis for Proctor’s reason for the inquiry. The

admission of this evidence did not prejudice Proctor. Thus, because the elicited testimony

did not concretely create an inference that this phone activity indicated her guilt in the

crime charged, we cannot say that this undermined the fairness of the proceedings. We,

thus, decline to reverse under plain error.

¶78 Turning next to the prosecutor’s comments, Proctor argues these amounted to

prosecutorial misconduct. We use a two-step analysis to determine whether improper

comments have prejudiced a defendant’s right to a fair trial. State v. Lindberg, 2008 MT

389, ¶ 25, 347 Mont. 76, 196 P.3d 1252 (citations omitted). First, we determine whether

the prosecutor made improper comments. Lindberg, ¶ 25. Second, we determine whether

those comments prejudiced a defendant’s right to a fair trial. Lindberg, ¶ 25 (citations

omitted).

¶79 We begin by examining whether the prosecutor’s comments were improper.

Prosecutors, except as otherwise prohibited by applicable constitutional rights, statutory

rules of procedure, and rules of evidence, have wide latitude to present and elicit relevant

incriminating evidence and to challenge any evidence presented by the defense. Miller,

¶ 22. The restrictions on prosecutorial latitude extend inter alia to commenting on facts

not in evidence, attesting to personal knowledge of facts, and improperly expressing

personal opinion regarding the guilt of the accused. Miller, ¶¶ 23, 24, 28 (citations

omitted). “[P]rosecutorial closing arguments and comments are generally proper if made

in the context of discussing the evidence, how it relates or corresponds to the law as stated

in the jury instructions [. . .], and reasonable inferences from the evidence.” Miller, ¶ 26.

¶80 Here, the prosecutor made statements during closing argument juxtaposing her own

character to that of Proctor’s. In doing so, the prosecutor highlighted her preparation for

trial as evidence of her character under pressure whereas Proctor, at the critical moments

of P.P.’s transfer between Helena and Kalispell, instead sent unrealistically optimistic text

messages to Tim and searched for a defense attorney rather than make an attempt to

understand P.P.’s medical situation. With these comments, the prosecutor precariously

treaded on “thin ice” by referring to the diligence of the prosecution, which are facts not in

evidence, and providing personal commentary of Proctor’s character. Miller, ¶ 38. These

comments were no doubt improper, satisfying the first step of our analysis.

¶81 Nonetheless, the burden remains on Proctor to demonstrate we should exercise plain

error review to consider whether the prosecutor’s comments resulted in an unfair trial under

the totality of the circumstances. The defendant bears the burden to demonstrate that a

prosecutor’s comments, viewed in the context of the case in its entirety, prejudiced their

right to a fair and impartial trial. Lindberg, ¶ 25 (citing State v. Wing, 2008 MT 218, ¶ 33,

344 Mont. 243, 188 P.3d 999; State v. Gladue, 1999 MT 1, ¶ 12, 293 Mont. 1, 972 P.3d

827).

¶82 Proctor draws our attention to several cases in which the prosecutorial misconduct

was similar to the conduct at issue here. Her argument necessarily must turn on whether

there was a reasonable possibility the prosecutor’s misconduct contributed to her

conviction. United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-17 (3d Cir. 1973).

In Macon, the prosecutor noted the defendant’s decision to call a lawyer following a violent

incident. Macon, 476 F.2d at 614. The Third Circuit reversed after concluding that the

record did not indicate “a situation where the case against the petitioner was otherwise so

overwhelming that the constitutional error did not, beyond a reasonable doubt, contribute

to the conviction.” Macon, 476 F.3d at 616. In Connecticut v. Angel T., 973 A.2d 1207

(Conn. 2009), the Connecticut Supreme Court likewise found the state’s evidence,

exemplified by multiple reports of jury deadlock and credibility issues with a key witness,

did not overcome the constitutional error of prosecutorial misconduct. Angel T., 973 A.2d

at 1227-28. In Washington v. Espey, 336 P.3d 1178 (Wash. Ct. App. 2014), the prosecutor

“argued that because [the defendant] exercised his constitutional right to counsel, he was

lying[,]” thereby improperly and incurably commenting on and penalizing the defendant’s

exercise to his constitutional right to counsel. Espey, 336 P.3d at 1182. Because

Washington’s prosecution hinged on a theory that Espey lacked credibility, the

prosecutor’s statements improperly created the inference his utilization of a lawyer meant

he was dishonest, thus warranting reversal of his conviction. Espey, 336 P.3d at 1183.

Finally, Pennsylvania v. Lang, 275 A.3d 1072 (Pa. Super. Ct. 2022), also found a

defendant’s constitutional right to a fair trial was prejudiced by the introduction of evidence

of internet searches for criminal defense attorneys. Lang, A.3d at 1085. The court there

had determined that the internet search evidence “would not provide insight as to [the

defendant’s] state of mind following an accusation of criminal behavior” because the

searches were conducted long before he had been subjected to an active investigation and

the probative value of the internet searches was substantially outweighed by the prejudicial

effect of their admission. Lang, A.3d at 1085-86.

¶83 Proctor argues that the instant case offers no obvious guilt, overwhelming evidence,

or eyewitness support, and thus the prosecutorial misconduct served only to prejudicially

obfuscate the evidentiary disputes over who or what caused P.P.’s injuries and thus misled

the jury into inferring Proctor’s guilt from constitutionally protected actions. We disagree.

As a preliminary matter, we have already held that the District Court did not abuse its

discretion in admitting expert testimony related to the cause of P.P.’s injuries. We can

distinguish Macon and Angel T., which involved more attenuated evidence, from the instant

case because the substantial evidence admitted here demonstrated that P.P. had been

abused, the abuse resulted in severe injuries, that P.P. had several fractures at different

stages of healing suggesting older instances of abuse, and that P.P. last appeared healthy

immediately before Proctor had exclusive access to her. Unlike Espey, Proctor’s credibility

was not at issue in the case; the impermissible use of her internet searches, which we have

already deemed harmless error, did not assert that Proctor, who did not testify, was

dishonest. Rather the State’s prosecution turned on the medical evidence introduced at

trial. Likewise, contrary to Lang and regardless of the breadth of the search warrant, the

internet searches occurred during the acute phase of initial suspicions P.P. had been abused;

when the suspicions were conveyed to Proctor; and immediately before the State pursued

criminal charges.

¶84 We are unconvinced by Proctor’s argument that the improper instances of

prosecutorial misconduct prejudiced her right to a fair trial. While the prosecutorial

misconduct is disturbing and, under different facts might be grounds for reversal, we must

consider them against the overwhelming evidence that P.P. was abused by Proctor. In the

context of the trial in its entirety, the prosecutor’s closing argument inelegantly attempted

to place Proctor’s behavior in late September and early October in context of the significant

evidence of P.P.’s injuries, to which admissible evidence indicated a prolonged period of

NAT resulting in severe new and healing bone fractures, brain injury, bruising, abrasions,

retinal hemorrhages, and neck injury. Proctor does not challenge the sufficiency of this

evidence on appeal and our review of the record does not provide for the conclusion the

prosecutorial misconduct sought to bolster a factually weak case presented by the State.

The primary focus of the State was upon the medical evidence, its expert medical

witnesses, and the window of time immediately preceding the onset of P.P.’s acute trauma;

thus, the prosecutor’s statements at closing argument, though reprehensible, were not

germane to the State’s ultimate theory of Proctor’s guilt. Instead, the State relied upon

extensive expert medical evidence to recreate a timeline in which P.P.’s injuries developed

following an acute instance of physical abuse. The evidence presented to the jury

demonstrated that this instance occurred when Proctor had exclusive access to and control

of P.P. in the critical moments—marked by Proctor’s overwhelming exhaustion and

frustration at new parenthood, moving, and living apart from a distracted spouse—leading

up to P.P.’s hospitalization. This evidence, in the context of the trial as a whole, outweighs

the prosecutor’s overzealous allusion to an inherent wickedness of Proctor’s character in

closing argument.

¶85 Proctor has failed to meet her burden for this Court to exercise plain error review.

The misconduct at issue here did not result in a manifest miscarriage of justice, leave

unsettled the question of the fundamental fairness of the trial, or compromise the integrity

of the judicial process. Accordingly, we decline to exercise plain error review.

¶86 Issue Four: Whether Proctor’s counsel was ineffective.

¶87 Criminal defendants are guaranteed effective assistance of counsel. Whitlow v.

State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (citing U.S. Const. amend. VI; U.S.

Const. amend. XIV; Mont. Const. art. II, § 24). To succeed on an ineffective assistance of

counsel claim, the defendant must prove two elements. Whitlow, ¶ 10 (quoting Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). First, the defendant must

prove that counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064. Second, the defendant must prove that this deficient performance prejudiced their

right to a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. If the defendant fails

to satisfy one of the Strickland prongs, there is no need to address the other prong. Whitlow,

¶ 11.

¶88 Proctor argues her counsel was ineffective for failing to object to the admission of

Proctor’s internet searches for defense counsel and to the prosecutor’s statements during

closing arguments. Having determined these instances of alleged deficiencies would not

have contributed to her conviction given the overwhelming evidence of P.P.’s

non-accidental injuries, we likewise decline to conclude any possible deficient

performance on the part of Proctor’s trial counsel prejudiced her right to a fair trial.

CONCLUSION

¶89 The District Court did not abuse its discretion by allowing expert testimony on

NAT. The warrant to search Proctor’s phone was an impermissible general warrant, but

the admission of any evidence seized was ultimately harmless. The prosecutor made

impermissible comments on Proctor’s character and internet search history in closing

arguments, but this did not constitute plain error meriting reversal. Finally, Proctor was

not denied effective assistance of counsel.

¶90 Affirmed.

/S/ LAURIE McKINNON

We Concur:

/S/ BETH BAKER

Justice Jim Rice, specially concurring.

¶91 I concur with the Court’s decision to affirm Issue 2, the warrant issue, but I would

conclude the warrant to search Proctor’s cellphone was valid, and thus disagree the warrant

was “unlawfully overbroad” and amounted to an “unparticularized general warrant,”

necessitating harmless error review. Opinion, ¶ 72. I concur with the remainder of the

Court’s Opinion.

¶92 Search warrant specificity “serves to prevent a ‘general, exploratory rummaging in

a person’s belongings.’” Seader, ¶ 11 (citing Coolidge v. New Hampshire, 403 U.S. 443,

467, 91 S. Ct. 2022, 2038 (1971)); see also Maryland v. Garrison, 480 U.S. 79, 84,

107 S. Ct. 1013, 1016 (1987) (The particularity requirement “ensures that the search will

be carefully tailored to its justifications, and will not take on the character of the

wide-ranging exploratory searches the Framers intended to prohibit.” (internal footnote

omitted)). A search warrant must provide enough specificity such that “nothing is left to

the discretion of the officer executing the warrant.” Seader, ¶ 11 (citing Stanford v. Texas,

379 U.S. 476, 485, 85 S. Ct. 506, 511 (1965)). Yet this discretion-limiting rule “cannot be

read literally because few warrants would survive such a stringent rule.” Seader, ¶ 12.

“The specificity required of a search warrant may vary depending on the circumstances of

the case and the type of items involved.” Seader, ¶ 13.

¶93 The Court reasons the search warrant of Proctor’s phone “provided for law

enforcement to search the entirety of Proctor’s phone, with the only exclusions applying to

communications with legal or religious counsel.” Opinion, ¶ 56. The Court states the

exclusions of communications with legal or religious counsel were the only guardrails to

the warrant, which it calls “meager.” Opinion, ¶ 56. The Court concludes that the warrant

for Proctor’s phone was unlawful because it “did not provide sufficient guidance to the

officers to ‘distinguish[] between items that could and could not be seized[.]’” Opinion,

¶ 56 (citing Seader, ¶ 14).

¶94 The warrant application provided information learned by police in their

investigation that P.P.’s parents used their phones to contact medical personnel and to

utilize a medical device to monitor P.P.’s vital signs, that the parties had reported their

locations to medical personnel, including Proctor’s locations in town and Tim Proctor’s

work-related travel, which the District Court noted provided “a common-sense conclusion

that GPS evidence in the phones” would verify the parties’ locations in the days prior to

P.P.’s presentation in the emergency room, and that the parties had conducted significant

communications on their phones regarding news that P.P. had suffered physical abuse. The

warrant itself provided that any data seized must be “related to the crimes or offenses

identified herein,” meaning Aggravated Assault. Accordingly, any data unrelated to the

charged offense of Aggravated Assault of P.P. was excluded by the warrant’s plain terms.

As the District Court reasoned:

This language provided a temporal limitation to the evidence seized because

P.P. was born on May 28, 2021, and the warrant was obtained on October 28,

2021, five months later. It also provided a substantive limitation of the

evidence to be seized as related to the Aggravated Assault identified in the

application and warrant.

¶95 Thus, an accurate description of the warrant’s prohibitions includes: (1) all data

unrelated to the charged crime, (2) information outside the inherent “temporal limitation”

framed by the investigative conclusions set forth in the application, (3) privileged

communications with counsel or clergy, and (4) other exclusions agreed to by the parties.

Although not dispositive, the warrant’s limitation to data related to the specific crime

charged narrowed its scope considerably, and prevented “exploratory rummaging”

prohibited by the Fourth Amendment and Article II, Section 11, of the Montana

Constitution. Seader, ¶ 11.

¶96 The question is thus whether a search warrant authorizing a search for “all

data . . . related to the crimes or offenses identified herein” under the limitations created

therein satisfies the constitutional specificity requirement when viewed in light of the

specific facts of this case, the supporting affidavit, and the nature of the charged offense.

While “all data” may constitute a generic description by itself, “[g]eneric categories or

general descriptions of items are not necessarily invalid if a more precise description of the

items to be seized is not possible.” Seader, ¶ 13 (citing United States v. Spilotro, 800 F.2d

959, 963 (9th Cir. 1986)). The relevant inquiry asks whether the warrant makes clear what

items may or may not be seized. Seader, ¶ 12.

¶97 I would note that the primary case cited by both parties, Seader, is a case decided

nearly three decades ago in 1999 when cell phones were far from ubiquitous and digital

storage was very limited, given that floppy disks and VHS tapes were still in use.

Twenty-seven years is a very long time in digital technology. Mefford, a 2022 case, is

primarily a consent search case and did not directly address particularity of a search warrant

for cell phone data. See Mefford, ¶¶ 17–29. While Seader remains good law, it does not

grapple with the unique difficulties of crafting and executing search warrants for seizure

of modern digital evidence, including the sheer volume and intermingled nature of data

stored on contemporary smartphones, nor did it consider a world in which cell phones are

utilized by virtually everyone, including for storage of their communications, and

commonly serve as tools in the commission of crimes or the concealment of evidence that

follows.

¶98 Digital data available on computer readable media, such as computers, phones, and

the like, complicates the specificity inquiry and requires careful balance:

On one hand, it is clear that because criminals can—and often do—hide,

mislabel, or manipulate files to conceal criminal activity, a broad, expansive

search of the hard drive may be required. . . . On the other hand, . . . granting

the Government a carte blanche to search every file on the hard drive

impermissibly transforms a limited search into a general one.

United States v. Richards, 659 F.3d 527, 538 (6th Cir. 2011) (quoting United States v.

Stabile, 633 F.3d 219, 237 (3d Cir. 2011)). In the same vein, the Tenth Circuit notes that:

[I]t is folly for a search warrant to attempt to structure the mechanics of the

search and a warrant imposing such limits would unduly restrict legitimate

search objectives.

[I]n the end, there may be no practical substitute for actually looking in many

(perhaps all) folders and sometimes at the documents contained within those

folders, and that is true whether the search is of computer files or physical

files. It is particularly true with image files.

United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009) (internal footnote omitted).

The warrant at issue in Richards specified “all content of the . . . servers at BlackSun 1200

West 7th Street, Los Angeles, California 90017, . . .” Richards, 659 F.3d at 535. The

warrant at issue in Burgess specified “certain property and evidence to show the

transportation and delivery of controlled substances, which may include . . . computer

records[.]” Burgess, 576 F.3d at 1083. Neither warrant failed the specificity requirement.

See Richards, 659 F.3d at 541–42 (“The scope of the warrant was restricted to a search for

evidence of child pornography crimes and did not permit a free-ranging search.”); Burgess,

576 F.3d at 1092 (“Our reading of the scope of the ‘computer records’ subject to search,

narrowing it to looking for drug related evidence, comes from the text of the warrant, with

due regard to context, coupled with the specifics of the supporting affidavit . . . .”). In

short, although the warrants at issue in both cases contained broad “all content” language

or general categories such as “computer records,” the particularity analysis turned on the

facts and circumstances of the crime charged, the supporting affidavit, and the nature of

the digital evidence sought.

¶99 In United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006), the Ninth Circuit upheld

a warrant that sought “evidence of violations of [18 U.S.C. § 875(d)]: Transmitting

Threatening Communications With Intent to Commit Extortion,” including “[c]omputer,

hard drives, computer disks, CD’s, and other computer storage devices.” Adjani, 452 F.3d

at 1144. The warrant directed that, “[i]n searching the data, the computer personnel will

examine all of the data contained in the computer equipment and storage devices to view

their precise contents and determine whether the data falls within the items to be seized as

set forth herein.” Adjani, 452 F.3d at 1144 (emphasis added). In determining whether the

warrant was sufficiently particular, the court applied a three-prong test:

(1) whether probable cause exists to seize all items of a particular type

described in the warrant; (2) whether the warrant sets out objective standards

by which executing officers can differentiate items subject to seizure from

those which are not; and (3) whether the government was able to describe the

items more particularly in light of the information available to it at the time

the warrant was issued.

Adjani, 452 F.3d at 1147 (quoting Spilotro, 800 F.2d at 963). Although the warrant

included broad “all data” language, the court found that it satisfied all three prongs.

Adjani, 452 F.3d at 1148–49.

¶100 Under that test, the first prong was clearly satisfied. Adjani, 452 F.3d at 1148. With

respect to the second prong, whether the warrant sets out objective standards by which

executing officers can differentiate items subject to seizure from those which are not, the

court emphasized that the warrant affidavit “began by limiting the search for evidence of a

specific crime [charged],” and that “the extensive statement of probable cause in the

affidavit [had] detailed the alleged crime and Adjani’s unlawful scheme.” Adjani, 452 F.3d

at 1148–49 (emphasis added). The court concluded on the second prong: “the warrant

objectively described the items to be searched and seized with adequate specificity and

sufficiently restricted the discretion of agents executing the search.” Adjani, 452 F.3d at

1148.

¶101 With respect to the third prong, the Ninth Circuit acknowledged the “heightened

specificity concerns in the computer context,” but nevertheless concluded “the government

described the items to be searched and seized as particularly as could be reasonably

expected given the nature of the crime and the evidence it then possessed.” Adjani,

452 F.3d at 1149. In other words, the court considered the facts and circumstances of the

case (such as the evidence the government possessed at the time), the nature of the crimes

charged, the nature of the evidence sought, and the contents of the affidavit supporting the

search warrant. The warrant’s language was found to be “not unreasonable under the

circumstances,” particularly because “computer files are easy to disguise or rename” and

the “government should not be required to trust the suspect’s self-labeling when executing

a warrant.” Adjani, 452 F.3d at 1149–50.

¶102 State courts have also applied a case-by-case approach to search warrants seeking

digital data. In State v. McGovern, 974 N.W.2d 595 (Neb. 2022), the Nebraska Supreme

Court upheld a warrant to search the defendant’s cell phone in a voyeurism case.

McGovern, 974 N.W.2d at 614. The warrant authorized a broad search of the phone’s data,

including “data that may identify the owner” of the phone such as call histories,

photographs and metadata, messages, videos, GPS data, internet browser files, and “any

deleted and/or unallocated content . . . .” McGovern, 974 N.W.2d at 605. The court

rejected the defendant’s particularity challenge, noting the inherent challenges of

describing precisely where data may be found: “officers cannot predict where evidence of

a crime will be located in a cell phone or in what format, such as texts, videos, photographs,

emails, or applications.” McGovern, 974 N.W.2d at 614. The court concluded:

The most important constraint in preventing unconstitutional exploratory

rummaging is that the warrant limit the search to evidence of a specific crime,

ordinarily within a specific time period, rather than allowing a fishing

expedition for all criminal activity. Here, the warrant named a specific crime,

the incorporated affidavit identified a time period, and both documents listed

specific areas of the phone to be searched.

The nature of the crime—unlawful intrusion—limited the scope of the

search; law enforcement officers knew they were to search for evidence

regarding the device’s owner or user along with such things as photographs

and videos. The warrant also listed specific areas to be searched within the

cell phone, which were consistent with those described in the affidavit.

McGovern, 974 N.W.2d at 614.

¶103 To be sure, there are cases in which broad, all-encompassing “all data” type

language fails the particularity requirement. In United States v. Winn, 79 F.Supp.3d 904

(S.D. Ill. 2015), the warrant authorized the seizure of “any and all files” on the defendant’s

phone for evidence of public indecency. Winn, 79 F.Supp.3d at 919. The court noted that

the “major, overriding problem with the description of the object of the search—‘any or all

files’—is that the police did not have probable cause to believe that everything on the phone

was evidence of the crime of public indecency.” Winn, 79 F.Supp.3d at 919. In Adjani,

the warrant specifically identified the crime charged and the Ninth Circuit found that

reference helpful to establishing particularity, Adjani, 452 F.3d at 1148–49, whereas in

Winn the mere reference to the charged statute was not viewed as sufficient to limit the

scope of the warrant. Winn, 79 F.Supp.3d at 921 (“[A] reference to a general statute

certainly will not satisfy the Fourth Amendment’s particularity requirement when the

police could have more precisely described the evidence that they were seeking or included

other limiting features.”). The court in Winn concluded the warrant was not limited in time

and did not limit the search with “as much particularity as the circumstances allowed,” and

instead “authorized the police to seize the entirety of the phone and rummage through every

conceivable bit of data, regardless of whether it bore any relevance whatsoever” to the

charge. Winn, 79 F.Supp.3d at 918–22. The court stated: “the warrant told the police to

take everything, and they did.” Winn, 79 F.Supp.3d at 922.

¶104 Similarly, in Richardson v. State, 282 A.3d 98 (Md. 2022), the warrant authorized

a search of “[a]ll information . . . and any other data stored or maintained inside of” the

defendant’s phone. Richardson, 282 A.3d at 108. The Maryland Court of Appeals noted

that it is “more challenging for law enforcement agencies and courts to apply the

particularity requirement in the digital world than in the physical world,” and that “it can

be difficult for officers to specify in advance the sections of the device that should be

searched.” Richardson, 282 A.3d at 108. The court distinguished between the “how” a

search is to be done (noting that some judges have denied warrants for lack of a sufficient

search protocol) and the “where, what, and when” of a search (noting that “the most

common limitation that issuing judges should consider including in a warrant to satisfy the

particularity requirement is a temporal restriction”). Richardson, 282 A.3d at 115–120

(emphasis in original). The court noted that, in general, “catchall” language effectively

permitting officers to seize all data on a cell phone or other electronic device renders a

search warrant invalid. Richardson, 282 A.3d at 119. The court concluded:

While reasonable minds may differ at times on whether a warrant is

sufficiently particular, one thing is clear: given the privacy interests at stake,

it is not reasonable for an issuing judge to approve a warrant that simply

authorizes police officers to search everything on a cell phone. Because that

is what the search warrant did in this case, it violated the particularity

requirement of the Fourth Amendment.

Richardson, 282 A.3d at 124.

¶105 The facts of this case line up much more closely with Richards, Burgess, Adjani,

and McGovern than with Winn or Richardson. The proper inquiry under Seader is whether

the warrant makes clear what items may or may not be seized. Seader, ¶ 12. What Seader

did not include, and where the cases above are more helpful, is a recognition that the

specificity analysis for digital evidence seized pursuant to a search warrant must be

context-specific and consider the reality of how digital data is actually stored and searched.

“[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley v.

California, 573 U.S. 373, 381, 134 S. Ct. 2473, 2482 (2014) (internal quotation marks

omitted); see also Mefford, ¶ 12.1

The Court responds by focusing on the fact that several of the cases cited herein, Richards, Adjani, and McGovern, “concerned crimes which occurred on cell phones and search warrants tailored to that effect.” Opinion, ¶ 65. However, not all of the cases cited herein concerned cell phone crimes, yet the governing principles applied nonetheless. And, while the Court’s statement with regard to Richards, Adjani, and McGovern is technically accurate, those cases stand for the broader proposition that the specificity analysis must account for the realities of digital evidence on modern cell phones. This is not to suggest that search warrants for cell phones face a lower burden. The constitutional standard for particularity remains the same: the warrant must provide the executing officer with sufficient objective guidance so that he or she knows what items fall within the scope of the warrant and what items do not. Seader, ¶ 12. However, when applying Seader to modern digital evidence, the analysis should recognize that it is often impossible to draft a warrant that perfectly describes in advance the precise nature and location of every piece of

¶106 I would conclude that the District Court did not err by concluding the warrant here

was sufficiently specific under the circumstances. Although the warrant for Proctor’s

phone uses the phrase “all data,” which could arguably be viewed as an improper catchall

if used in isolation, here the language is expressly limited to only data “related to the crimes

or offenses identified herein,” and contained an inherent temporal restriction, which

contrasts to general warrants like the one discussed in Richardson. The crime charged was

Aggravated Assault of P.P., who was only five months old at the time. Any data predating

the relevant period was therefore inherently excluded, adding a temporal limit to the

warrant in contrast to Winn. The officer executing the search warrant here could not “take

everything,” as they did in Winn. See Winn, 79 F.Supp.3d at 922.

¶107 Additionally, as in Adjani, the warrant here was supported by a detailed affidavit

that provided objective guidance to the officer executing the warrant. The affidavit

catalogued each of P.P.’s injuries, along with the NAT diagnosis, identified the specific

dates on which P.P. presented at daycare with facial injuries, as well as the date on which

her black eye was observed upon admission to St. Peter’s Hospital. The affidavit further

noted specific types of app data, such as Owlet app data, and noted Proctor’s heavy phone

usage at the hospital immediately following P.P.’s life-altering diagnosis. Relying on his

responsive evidence. Though data on a smartphone is frequently intermingled with innocent information, a warrant that is expressly limited to evidence of a specific crime and supported by a detailed affidavit can still satisfy the specificity requirement even if it does not identify with absolute precision every responsive file or folder. In my view, the Court in this case gives insufficient weight to two facts relating to specificity: (1) the warrant expressly limited the search to data “related to the crimes or offenses identified herein,” and (2) the warrant was supported by a detailed affidavit that provided specific factual context and temporal boundaries.

training and experience, Detective Van Dyke opined that this conduct suggested the phone

would contain relevant evidence of P.P.’s injuries, medical history, and care. The warrant

identified a specific crime, the supporting affidavit supplied a relevant time frame and

additional factual context, and together they provided an objective standard for “what items

may or may not be seized” in this context. Seader, ¶ 12. The warrant for Proctor’s phone

did not authorize a free-ranging or exploratory search. See McGovern, 974 N.W.2d at 615;

Richards, 659 F.3d at 541–42; Burgess, 576 F.3d at 1092. Under the facts and

circumstances presented, the warrant met constitutional standards.

¶108 I would affirm the District Court on this issue.

/S/ JIM RICE

Chief Justice Cory J. Swanson joins in the specially concurring Opinion of Justice Jim Rice.

/S/ CORY J. SWANSON

Justice Katherine M. Bidegaray, concurring in part and dissenting in part.

¶109 I concur in the Court’s conclusion that the October 28, 2021 warrant authorizing

extraction and search of Proctor’s cell phone data was an unconstitutional general warrant.

I dissent, however, from the Court’s conclusion that admission and use of the fruits of that

warrant were harmless. I also dissent from the Court’s refusal to review, under the

plain error doctrine, the prosecutor’s closing argument inviting the jury to judge Proctor by

her “character” and by her decision to search for legal counsel while her child was

hospitalized. Finally, although I would reverse on Issues Two and Three and therefore

need not resolve the Rule 702 issue definitively, I write separately to address a narrow

reliability concern that this case illustrates and that may recur in future cases. I would not

hold that nonaccidental-trauma (NAT) or abusive-head-trauma (AHT) testimony is

categorically inadmissible. I write only to express concern that, where the State uses a

shaking/acceleration-deceleration mechanism in the absence of clear impact evidence to

prove causation and timing, the district court must require a reliability showing directed to

that specific mechanism.

¶110 The Court holds that law enforcement obtained Proctor’s phone data through an

unconstitutional general warrant. It further recognizes that portions of the prosecutor’s

closing argument were improper. But the Court then affirms because it is satisfied, from

its review of the record, that the State’s remaining evidence was substantial enough to

support the verdict without the tainted evidence. This Dissent does not question that the

State presented serious evidence or that the jury could credit it. The point is narrower:

under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735, appellate confidence

in the remaining evidence does not answer whether the unconstitutional phone evidence,

as actually used, might reasonably have contributed to the conviction. That is not the

harmless error inquiry Montana law requires. Under Van Kirk, as to the warrant error, the

question is not whether this Court believes the jury could have convicted without the

tainted evidence; the question is whether the State has shown “there is no reasonable

possibility that the inadmissible evidence might have contributed to the conviction.”

Van Kirk, ¶ 47. On this record, the State has not made that showing.

The warrant was unconstitutional, and the tainted evidence was not harmless

¶111 Montana’s Constitution protects “the people” against unreasonable searches, and

separately protects individual privacy, including privacy in electronic data and

communications; “no warrant . . . shall issue without describing the place to be searched

or the person to be seized.” Mont. Const. art. II, §§ 10, 11. The particularity requirement

is no mere drafting preference. It ensures that “nothing is left to the discretion of the officer

executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 76

(1927). It prevents “a general, exploratory rummaging in a person’s belongings.”

Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 2038 (1971); State v.

Seader, 1999 MT 290, ¶ 11, 297 Mont. 60, 990 P.2d 180. And in the digital context, the

need for particularity is heightened because modern cell phones hold “the privacies of life.”

Riley v. California, 573 U.S. 373, 403, 134 S. Ct. 2473, 2494-95 (2014); see also State v.

Mefford, 2022 MT 185, ¶ 15, 410 Mont. 146, 517 P.3d 210.

¶112 The warrant here authorized law enforcement to extract and download “[a]ll data

currently stored in” Proctor’s phone “related to” aggravated assault, “including but not

limited to” GPS and location data, IP addresses, activity logs, contacts, calendars,

photographs, audio and video files, metadata, email messages and attachments, documents,

timeline history, public profiles, login history, browsing and search history, visited

websites, text messages, instant messages, privacy settings, social-media profiles and

conversations, financial and credit card account information, linked applications, Owlet

data, and any data pertaining to P.P.’s health, injuries, or circumstances. The only express

exclusions were communications with legal counsel, clergy, and other agreed-upon

communications. This was not a narrow search for Owlet data from September 28-29.

It was authorization to rummage through nearly every category of data a modern phone

can contain.

¶113 I therefore agree with the Court that the warrant was “unlawfully overbroad and

unparticularized.” The warrant did not enable executing officers to distinguish what could

and could not be seized. Seader, ¶ 14. Instead, it left the scope of the search to law

enforcement’s discretion. That is the constitutional evil the particularity requirement

forbids.

¶114 The Special Concurrence would uphold the warrant because it referenced

aggravated assault and because P.P. was only five months old. I cannot agree that an

“inherent” time frame or a general offense label can substitute for objective limits in the

warrant itself. The application established, at most, a focused nexus to Owlet data,

communications, photographs, or records bearing on P.P.’s health, care, injuries, or the

circumstances of those injuries during a defined period. The warrant instead authorized

nearly every category of phone data, including financial account information, public

profiles, login history, browsing history, privacy settings, and linked applications, and did

so “including but not limited to” the listed categories. A warrant remains general when

the line between what may and may not be seized depends on the executing officer’s

after-the-fact judgment about what is “related” to a broad suspected offense.

¶115 I part ways with the Court on harmless error. The Court treats the tainted phone

evidence as a series of isolated, cumulative items: photographs of P.P.’s bruises and

abrasions, web-history evidence showing Proctor searched for defense counsel, two text

messages to Tim, and Pinterest activity. That approach reverses the inquiry. Van Kirk

requires comparison between the tainted evidence and admissible evidence that proved the

same facts; it does not ask whether the rest of the record could support conviction. But the

State did not use those pieces in isolation. It wove them into the central narrative of guilt:

that Proctor had abused P.P. over time, that the acute brain injury was part of that pattern,

and that Proctor’s conduct after hospitalization revealed consciousness of guilt and bad

character.

¶116 The cell phone photographs were not merely cumulative of testimony that P.P. had

marks on her face. The relevant Van Kirk question is not merely whether witnesses also

described bruises. It is whether admissible evidence proved the same facts, with

comparable qualitative force, as the phone photographs. It did not. The State displayed

and argued them as visual proof of a “pattern” of abuse beginning when P.P. was only

weeks old. It used them in opening, in its case-in-chief, and in closing. Visual evidence

of injuries to an infant carries a force different in kind from testimony that a witness

observed a bruise or abrasion. The photographs supplied a visual chronology from which

the State argued an escalating pattern of abuse beginning weeks after birth. They allowed

the State to transform isolated observations of marks into a narrative of continuing abuse

culminating in the catastrophic brain injury. The State then used those photographs to elicit

medical testimony that one of the images depicted an injury the pediatrician had “never

seen” in a one-month-old and that would have led her to admit P.P. for an abuse workup.

That evidence did more than prove “bodily injury” as opposed to “serious bodily injury.”

It invited the jury to infer that the later catastrophic injury was part of an ongoing course

of abuse.

¶117 The web-history evidence was more prejudicial still. The Court reasons that the

attorney-search evidence was cumulative because the jury otherwise heard that Proctor had

counsel in October 2021. But there is a meaningful difference between neutral evidence

that counsel later became involved and the State’s use of unlawfully obtained search history

to argue that Proctor was “looking for a defense attorney while her daughter is dying.”

Those are not the same facts, and they do not carry the same qualitative force. The former

shows ordinary litigation activity after a family was under investigation; the latter invites

the jury to treat contemporaneous counsel-seeking as consciousness of guilt and deficient

maternal character. The tainted evidence supplied timing, context, and rhetorical force. It

allowed the State to transform the exercise of prudence—seeking legal advice when CPS,

law enforcement, and medical providers were treating the case as suspected abuse—into

evidence of selfishness, bad character, and guilt.

¶118 Similarly, the text messages and web-history testimony were not harmless. The

State elicited that, during P.P.’s hospitalization, Pinterest activity and searches for defense

attorneys “stood out” in Proctor’s phone history. It then used the texts and attorney-search

evidence to portray Proctor’s behavior as abnormal during a medical crisis. It argued not

simply that Proctor behaved differently than others might have behaved, but that her

behavior revealed “what the defendant’s character is.” The cell phone evidence gave the

prosecutor the evidentiary hook for that improper moral argument.

¶119 The Court’s harmlessness analysis also gives insufficient weight to the State’s own

use of the evidence. Evidence that the State repeatedly uses in opening, witness

examination, and closing to advance a pattern-of-abuse and consciousness-of-guilt theory

cannot fairly be dismissed as insignificant after conviction. The State chose to present the

phone evidence because it believed the evidence would help persuade the jury. That choice

matters in assessing whether there is a reasonable possibility the evidence contributed to

the verdict.

¶120 Finally, the Court’s harmless error analysis conflicts with Van Kirk. The Court

repeatedly relies on the strength of the State’s remaining evidence to excuse the taint of the

cell phone data. But Van Kirk explicitly rejected the “overwhelming evidence” test.

Van Kirk, ¶ 43. The State cannot satisfy its burden merely by showing that admissible

evidence might have been sufficient to convict. It must show that the tainted evidence

did not contribute to the conviction. Van Kirk, ¶ 47. This may have been a case in which

the jury could convict on admissible evidence; that is not the test. We cannot ignore the

State’s own on-the-record concession during a pretrial motions hearing that “our case is

highly circumstantial. It is entirely circumstantial.” The State cannot lean on selected and

visually powerful cell phone photographs of a bruised infant to bridge the gaps in its

circumstantial timeline and then claim on appeal that the evidence was overwhelming

anyway. In a case where medical causation, timing, and identity were fiercely disputed,

the State has not carried its burden to prove the fruits of the unconstitutional warrant were

harmless.

The prosecutor’s argument compounded the constitutional error and warrants plain error review

¶121 The prejudice of the unconstitutional search did not end with the mere admission of

the tainted evidence. The prosecutorial misconduct issue cannot be separated from the

warrant issue. The State obtained Proctor’s phone data under a general warrant, introduced

evidence that she searched for defense counsel, and then argued that search to the jury as

evidence of her character and guilt. The constitutional injury was not complete when the

search occurred. It was amplified when the State used the fruits of the search to invite an

inference no criminal trial should permit.

¶122 We review unpreserved claims of prosecutorial misconduct under the common law

plain error doctrine when the claimed error implicates a fundamental right and failure to

review may result in a manifest miscarriage of justice, leave unsettled the fundamental

fairness of the trial, or compromise the integrity of the judicial process. State v. Deveraux,

2022 MT 130, ¶ 21, 409 Mont. 177, 512 P.3d 1198; State v. Finley, 276 Mont. 126, 137,

915 P.2d 208, 215 (1996). A criminal defendant’s right to a fair trial is guaranteed by the

Sixth Amendment and by Article II, Section 24, of the Montana Constitution. Prosecutorial

misconduct warrants reversal when it deprives the defendant of a fair and impartial trial.

State v. Haithcox, 2019 MT 201, ¶ 24, 397 Mont. 103, 447 P.3d 452; State v. Byrne,

2021 MT 238, ¶ 18, 405 Mont. 352, 495 P.3d 440.

¶123 The prosecutor’s argument crossed that line. She told the jury that “when people

are under pressure . . . their character really comes out.” She then invoked her own

diligence in preparing the case: “That’s my character. That’s what the State is bringing to

this.” She immediately contrasted that asserted character with Proctor’s: “And you know

what the defendant’s character is?” The answer was the tainted phone evidence—Proctor’s

text messages and her search for a defense attorney. The prosecutor argued that Proctor

“looked for a defense attorney” while her daughter was dying and that she used her

resources “for herself to get a defense attorney.”

¶124 This was improper in at least three respects. First, it invited the jury to convict on

general bad character rather than on proof beyond a reasonable doubt of the charged

offense. See State v. Lake, 2022 MT 28, ¶ 32, 407 Mont. 350, 503 P.3d 274. The prosecutor

did not confine herself to rebutting a particular trait placed in issue by the defense.

She argued that Proctor’s “character” was revealed by her response to crisis and by her

search for counsel. That is precisely the kind of propensity-based reasoning our rules of

evidence and due process principles guard against.

¶125 Second, the prosecutor improperly placed her own character and credibility before

the jury, engaging in an improper personal credibility argument. A prosecutor may argue

the evidence and reasonable inferences from it; she may not use the prestige of her office

or her own personal qualities as a measure against which the jury should judge the

defendant. See State v. Hayden, 2008 MT 274, ¶ 33, 345 Mont. 252, 190 P.3d 1091.

By telling jurors “That’s my character. That’s what the State is bringing to this,” the

prosecutor made herself a moral comparator. We have reversed where a prosecutor’s

closing argument added the force of the prosecutor’s personal, professional, and official

influence to the evidence and created a clear danger that jurors adopted the prosecutor’s

views rather than their own independent judgment. Hayden, ¶ 33. The same danger is

present when the prosecutor expressly contrasts her own “character” with the defendant’s

and asks the jury to view that contrast as meaningful evidence. In an entirely circumstantial

case, this tactic risked adding the prosecutor’s personal, professional, and official influence

to the evidence and distracting the jury from the State’s burden to prove guilt beyond a

reasonable doubt.

¶126 Third, and most serious, the prosecutor invited the jury to infer guilt from Proctor’s

search for counsel. Courts have repeatedly recognized the danger of that inference.

The Connecticut Supreme Court has explained that evidence of a criminal defendant’s

consultation with counsel is “highly prejudicial” because it tends to suggest that the

defendant is, or believes herself to be, guilty. State v. Angel T., 973 A.2d 1207, 1220-22

(Conn. 2009). To infer consciousness of guilt from seeking counsel is “illogical and

unwarranted.” Angel T., 973 A.2d at 1221 n.15 (citation omitted). Other courts have

reached the same conclusion when prosecutors invite jurors to treat a request for counsel

as incriminating. See Commonwealth v. Lang, 275 A.3d 1072, 1081-85 (Pa. Super. Ct.

2022). Seeking legal advice is equivocal at best; an innocent person facing investigation

into catastrophic injuries to her child may reasonably seek counsel precisely because the

stakes are grave and the process is unfamiliar. Allowing a prosecutor to turn a preemptive

search for counsel into evidence of guilt threatens the fairness of the trial itself. If citizens

cannot research legal representation during a CPS and law enforcement inquiry without it

being introduced as consciousness of guilt, the integrity of the judicial process is deeply

compromised.

¶127 I would not decide this case on whether the Sixth Amendment right to counsel had

formally attached at the moment Proctor searched for an attorney. The problem is

more basic. Absent a legitimate non-propensity purpose that survives relevance and

unfair-prejudice review, the State may not invite jurors to treat a person’s effort to obtain

legal advice during a CPS, medical, and law-enforcement investigation as evidence of guilt,

consciousness of guilt, or bad character. See M. R. Evid. 401, 403, 404(a)(1), 404(b);

Lake, ¶ 32; Angel T., 973 A.2d at 1220-22; Lang, 275 A.3d at 1081-85. The constitutional

problem is especially acute here because the State used unlawfully obtained digital

evidence to make the argument.

¶128 The Court acknowledges that the prosecutor’s comments were improper and

“disturbing,” but it declines plain error review because it concludes the evidence was

overwhelming. That reasoning again substitutes appellate confidence in the State’s case

for the correct inquiry. Plain error review asks whether failure to review may leave

unsettled the fairness of the proceedings or compromise judicial integrity. Deveraux, ¶ 21.

When the prosecutor uses the fruits of an unconstitutional general warrant to tell jurors that

a defendant’s search for counsel reveals bad character and guilt, the integrity of the

proceeding is necessarily implicated.

¶129 I do not conflate the harmless error and plain error inquiries. The State bears the

burden to prove harmlessness of the warrant error; Proctor bears the burden to justify plain

error review of the unpreserved misconduct. On this record, both inquiries point in the

same direction because the same tainted evidence supplied the prosecutor’s improper

character and counsel-based argument. That overlap does not merge the standards; it

explains why failure to review the misconduct leaves the fairness and integrity of the

proceeding unsettled after the Court has already identified the underlying search as

unconstitutional.

¶130 This was not an isolated misstatement in a lengthy trial. The challenged argument

came at the end of the case, when jurors were being told how to interpret the evidence.

It joined the State’s themes: pattern of abuse, abnormal maternal response, consciousness

of guilt, and bad character. No contemporaneous objection was made, and therefore no

curative instruction specifically addressed the argument. The absence of a curative

instruction is not alone dispositive, but it matters when the argument struck directly at a

constitutionally protected choice and at the jury’s proper role.

¶131 The State’s case, moreover, was not a case of direct proof. No witness saw Proctor

shake, strike, or otherwise injure P.P. The causation and timing evidence were contested.

The defense presented medical evidence disputing the State’s diagnosis and pointing to

alternative explanations that, if credited, would undermine the State’s timeline. The State’s

“last caregiver” theory depended on disputed medical testimony about immediate

symptoms and on inferences about Proctor’s emotional state and conduct. In that context,

improper character and counsel-based arguments carried substantial risk.

¶132 I would hold that the prosecutor’s argument, considered together with the admission

of the tainted phone evidence, denied Proctor a fair trial. At minimum, it required this

Court to exercise plain error review. On review, I would conclude the misconduct,

combined with the unconstitutional admission and use of the cell phone evidence, requires

reversal of the conviction.

The errors were cumulative and mutually reinforcing

¶133 The Court analyzes the warrant evidence and prosecutorial misconduct separately.

That separation of issues misses how the trial unfolded. The State’s phone evidence and

argument reinforced one another. The warrant produced photographs, texts, Pinterest

activity, and attorney-search history. The State used those items to build a narrative that

Proctor had abused P.P. over time, responded abnormally when P.P. was gravely ill, and

sought counsel because she was guilty. The prosecutor then framed that narrative as a

question of “character.”

¶134 The cumulative effect matters. A general warrant allowed the State to reach deep

into Proctor’s digital life. The State then used the fruits of that unconstitutional search not

merely to prove discrete facts, but to invite moral condemnation and guilt-based inference

from counsel-seeking. Each error magnified the other. Even if one could call a single

photograph or text message cumulative in isolation, the State’s use of the phone evidence

in closing—as proof of a pattern of abuse, abnormal maternal response, bad character, and

guilt from counsel-seeking—precludes a finding that the warrant error was harmless.

That same counsel- and character-based argument leaves the fairness and integrity of the

proceedings unsettled.

¶135 Our constitutional guarantees are not satisfied by identifying serious error and then

affirming because we believe the defendant probably would have been convicted anyway.

The harmless error doctrine is not a license to excuse the State’s use of unconstitutional

evidence whenever the remaining record is substantial. Van Kirk places the burden on the

State to show no reasonable possibility of contribution to the conviction. The State has not

met that burden.

Rule 702 concern

¶136 Because the unconstitutional warrant and the subsequent prosecutorial misconduct

are sufficient reasons why I would reverse the conviction, I need not decide whether the

District Court’s Rule 702 ruling independently requires reversal. I write separately,

however, because the State’s timing theory depended materially on a contested

shaking/acceleration-deceleration mechanism in the absence of clear impact evidence, and

that evidentiary issue is likely to recur in future cases. I would not hold that NAT or AHT

testimony is categorically inadmissible. My concern is narrower: when the State uses a

shaking/acceleration-deceleration mechanism, in the absence of clear impact evidence, to

establish both causation and timing, the district court must require a reliability showing

directed to that specific mechanism.

¶137 M. R. Evid. 702 requires the district court to act as gatekeeper. The court must

determine whether expert testimony will assist the trier of fact, whether the field or method

is reliable, and whether the witness is qualified. State v. Clifford, 2005 MT 219, ¶ 28,

328 Mont. 300, 121 P.3d 489; Wheaton v. Bradford, 2013 MT 121, ¶ 16, 370 Mont. 93,

300 P.3d 1162. Cross-examination is an important tool, but it is not a substitute for the

court’s threshold reliability determination.

¶138 I would not hold that physicians may never diagnose nonaccidental trauma. Nor

would I hold that all testimony using the terms AHT or NAT is inadmissible. But the

State’s theory at trial was not merely that P.P.’s injuries were nonaccidental. The State

presented a shaking/acceleration-deceleration theory, in the absence of clear impact

evidence, as the explanation for P.P.’s brain injury. That theory was central to timing and

identity: if that mechanism would make P.P. immediately symptomatic, then the jury could

infer the injury occurred during the window when the State alleged Proctor was alone with

P.P. If the mechanism or timing premise is unreliable, the State’s circumstantial chain

weakens substantially.

¶139 The District Court’s oral ruling did not meaningfully separate a broad NAT

diagnosis from the specific contested shaking/acceleration-deceleration mechanism the

State relied on in the absence of clear impact evidence. The court stated that the defense

had “raised an issue” for the factfinder, that it had not heard anything showing the “science

is unreliable,” and that the jury should decide. Respectfully, that ruling conflates the

court’s preliminary gatekeeping responsibility with the jury’s ultimate role as factfinder.

Rule 702 requires the trial court to determine whether the expert field or method is reliable

before the jury weighs the evidence. Clifford, ¶ 28; Wheaton, ¶ 16. If the State’s timing

theory depends materially on the premise that shaking or acceleration/deceleration without

clear external impact causes immediate symptoms, the scientific reliability of that specific

biomechanical mechanism is a threshold admissibility question, not merely a question of

weight.

¶140 The supplemental authority filed after briefing underscores the point.

In State v. Nieves, 345 A.3d 1127, 1165-72 (N.J. 2025), the New Jersey Supreme Court

held that the State failed to establish the reliability of SBS/AHT testimony premised on

shaking without impact. Nieves is not controlling, and it arose under New Jersey law. But

it is persuasive for the narrower proposition relevant here: when the State seeks to prove

a contested shaking mechanism absent clear impact evidence, the court must require a

reliability showing directed to that mechanism, not merely to the general proposition that

child abuse occurs or that physicians may diagnose NAT.

¶141 In a future case, when the State seeks to offer testimony that

shaking/acceleration-deceleration in the absence of clear impact evidence caused

injury or that such a mechanism establishes timing, the district court should conduct a

focused Rule 702 inquiry. The State should be required to establish that the specific

scientific proposition offered to the jury is reliable before disputes over its application to

the facts are submitted to the jury.

Conclusion

¶142 I concur in the Court’s holding that the October 28, 2021 phone warrant was an

unconstitutional general warrant. I dissent from the Court’s conclusion that the admission

and use of the warrant’s fruits were harmless. I further dissent from the Court’s refusal to

review and remedy the prosecutor’s improper argument equating Proctor’s search for

counsel with bad character and guilt. In a case the State itself conceded was entirely

circumstantial, the State has not demonstrated that there is no reasonable possibility that

the tainted phone evidence contributed to the verdict. And because the State then used that

evidence to invite improper character and counsel-based inferences, the failure to review

the misconduct leaves the fairness and integrity of the proceedings unsettled. I would

therefore reverse Proctor’s conviction.

¶143 I respectfully concur in part and dissent in part.

/S/ KATHERINE M. BIDEGARAY

Justices Ingrid Gustafson and James Jeremiah Shea join in the concurring and dissenting Opinion of Justice Katherine M. Bidegaray.

/S/ INGRID GUSTAFSON

/S/ JAMES JEREMIAH SHEA

State v. K. Proctor

Authorities cited

Opinion · public domain