State v. Holstine

860 P.2d 110, 260 Mont. 310, 50 State Rptr. 1063, 1993 Mont. LEXIS 265
CourtMontana Supreme Court
DecidedSeptember 13, 1993
Docket92-481
StatusPublished
Cited by12 cases

This text of 860 P.2d 110 (State v. Holstine) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holstine, 860 P.2d 110, 260 Mont. 310, 50 State Rptr. 1063, 1993 Mont. LEXIS 265 (Mo. 1993).

Opinions

JUSTICE WEBER

delivered the Opinion of the Court.

Robert L. Holstine (defendant) appeals his conviction of felony possession of dangerous drugs by the District Court of the Eighteenth Judicial District, Gallatin County. We affirm.

On February 14,1991, Detective Mark Tymrak of the Bozeman City Police Department, was approached by a confidential informant who offered to provide information on a marijuana grow operation in the Big Sky area near Gallatin Gateway, Montana. The confidential informant described in detail the location of the residence just north of Big Sky where a man known as “Cutter Bob” lived. The confidential informant also gave a physical description of the residence, the person involved in the operation and his vehicle, and the marijuana grow operation itself. Further, the informant provided details of the grow operation, including the approximate number of plants and information that there was at least one grow light and a fan.

Detective Tymrak contacted Lieutenant Pronovost of the Gallatin County Sheriff’s Department and two officers of the Gallatin County Drug Task Force, Detectives Lenard and Sanem. Detective Tymrak and another detective traveled to Big Sky later that afternoon to corroborate the information given by the confidential informant. After verifying that the residence and its location matched the description given by the confidential informant, they met with local deputies assigned to the Big Sky area, who helped the detectives determine that “Cutter Bob” was [312]*312the defendant, Robert L. Holstine, and that defendant had been charged in 1989 with possession of drug paraphernalia.

At approximately 11:30 p.m., Detectives Lenard, Sanem and Pronovost of the Gallatin County Drug Task Force drove back to the Gallatin Gateway area. Detective Lenard parked his car on Highway 191 in a spot visible from defendant’s residence and left the emergency lights flashing. Wearing ski clothing and posing as a stranded motorist, Detective Lenard approached the residence while the other two detectives waited out of sight in another vehicle.

When defendant answered the door, Lenard told him that his car had broken down and asked the defendant if he could use his phone. The defendant led Lenard through an entryway and into a bedroom area in the main part of the residence, which consisted of a mobile home with a full-length addition. Lenard testified that he observed shop tools and cut antlers in the entrance area and detected the odor of marijuana smoke in the air. He observed no marijuana grow operation. Lenard testified that he was in the residence for only about forty-five seconds, during which time he used the phone and called his office, leaving a message on his answering machine.

Lenard left the residence and walked back to his car. He removed his skis from the top of his car and again approached the residence. He knocked on the door again, this time asking the defendant if he could leave his skis inside the residence. Lenard told defendant that he planned to leave his car on the side of the highway and feared the skis would be stolen. This time defendant did not admit Lenard into his home. Instead, he advised Lenard that he would be gone the next day, but that Lenard could leave the skis propped against the west side of the residence which was out of view from passersby. Lenard thanked the defendant, shook his hand and told him his name was Kevin Adams.

Lenard then walked around to the west side of the residence and propped his skis against the residence while he looked for additional information. The confidential informant had stated that the grow operation was located in the southwest comer. In that corner, Lenard observed a window covered with what appeared to be wood or insulated material and sealed with duct tape. Lenard testified that he could smell growing marijuana plants “really strong” in an area near the window as he walked past it.

Lenard then left with the other two detectives, returned to Bozeman and prepared paperwork to procure a search warrant. After obtaining the search warrant the next morning, Lenard and Tymrak returned to the defendant’s residence with the search warrant. As a [313]*313result of the search, the detectives found and seized horn and antler pipes found throughout the residence, a “baggy” containing marijuana that was found on a table, fourteen marijuana plants, and a hospital bill from the bedroom area addressed to Robert L. Holstine to show that defendant was living at the address and receiving mail there.

The marijuana plants were dried and then submitted to the Montana State Crime Lab, which confirmed that the substance was 159.5 grams of marijuana. Defendant moved to suppress the evidence obtained as a result of an illegal search. After a suppression hearing and a bench trial, the District Court denied the motion to suppress and found the defendant guilty of possessing more than 60 grams of marijuana, a felony, under § 45-9-102, MCA, and not guilty of manufacture of drug paraphernalia, a misdemeanor. This appeal followed.

Although the defendant argued extensively that the evidence found should have been suppressed because it was obtained by a ruse, we decline to address that issue. There was a total absence of relevant evidence gained by Detective Lenard’s ruse entry into defendant’s residence. Because the officers did not rely on any information gained by the ruse entry to support probable cause to obtain the search warrant, there was no evidence which could be classed as gained by deceptive entry. The sole issue for our review, therefore, is whether there was sufficient probable cause for a search warrant to issue.

This Court has adopted the “totality of the circumstances” test from Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, for assessing the issue of probable cause for the issuance of a search warrant. See State v. Campbell (1992), 254 Mont. 425, 427, 838 P.2d 427, 429. Our function is not to review de novo the magistrate’s determination that probable cause existed to issue a search warrant. State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220. Rather, our duty is to “ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. Moreover, as a reviewing court, we should attach great deference to the magistrate’s determination of probable cause. Campbell, 838 P.2d at 429.

The information provided to Detective Tymrak by the confidential informant was information the informant had received by firsthand observation. The informant provided detailed information on the defendant’s marijuana grow operation. The informant explained the location of the residence, the layout of the mobile home and its [314]*314built-on addition and the location within the mobile home where the marijuana was growing. The informant also told Tymrak that he had observed the marijuana plants growing in a room in the southwest corner of the residence. Although the informant knew the defendant only as “Cutter Bob,” the informant gave detailed descriptions of the defendant and the defendant’s vehicle.

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Cite This Page — Counsel Stack

Bluebook (online)
860 P.2d 110, 260 Mont. 310, 50 State Rptr. 1063, 1993 Mont. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holstine-mont-1993.