State v. Paschke

527 P.2d 569, 165 Mont. 231, 1974 Mont. LEXIS 410
CourtMontana Supreme Court
DecidedOctober 22, 1974
DocketNos. 12687 and 12688
StatusPublished
Cited by7 cases

This text of 527 P.2d 569 (State v. Paschke) 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. Paschke, 527 P.2d 569, 165 Mont. 231, 1974 Mont. LEXIS 410 (Mo. 1974).

Opinion

MR. JUSTICE HASWELL

delivered the Opinion of the Court.

These are combined appeals from the district court of Yellowstone County wherein Jon William Paschke and John Arnold Mason were convicted of criminal possession of dangerous drugs. Pursuant to stipulation of the parties a single hearing was held before Judge Brownlee to present all evidence applicable to defendants’ motions to suppress evidence or the ultimate question of guilt or innocence. Defendants appeal, challenging Judge Brownlee’s subsequent denial of their motions to suppress.

Defendants allege the warrant under which certain drugs were seized was invalid; therefore that evidence must be suppressed. Both Paschke and Mason claim the issuing magistrate was not shown sufficient probable cause for the issuance of the warrant. They further allege the warrant does not describe the premises to be searched with sufficient particularity. Mason also alleged that since he was not named in the warrant, the search of his room was not warranted.

[233]*233• On February 25, 1973, an application for a search warrant was executed by Richard Brennan, a deputy sheriff of Yellowstone County. This application contained the following sworn statement of facts:

“Information shows that Jon Paschke lives at 1930 Mullowney Lane, Billings, Montana, which is the residence of one Sally Johnson. Your affiant has had reports over the past nine months that Jon Paschke and Sally Johnson have been dealing drugs here in Billings and on the high line. Both of these individuals and the residence at 1930 Mullowney Lane have been under investigation for the past seven months by the city-county drug squad. Known drug users and dealers have been observed at the house. An informant who has furnished reliable information in the past that has led to drug arrests, advised within the last 48 hours that he had been contacted by a known drug user who offered to sell him drugs that he had obtained from Jon Pachke. This person told the informant that Paschke would be bringing more drugs into town (Amphetimines, Mescaline, Psilocybin) and he was to get into town on the evening of February 24, 1978. Paschke drives a 1970 Ford Yan 3-27650. This unit was not at the house on last evening. The Yan was observed at the house (1930 Mullowney Lane) about noon today, Feb. 25, 1973. The residence has been checked during the evening and morning. This same information was also received during the last 48 hours from two other sources.”

The application was filed with R. J. Williams, a justice of the peace, on the same day. Although Deputy Brennan appeared personally before Judge Williams, he contributed no information toward the determination of probable cause other than that contained in the quoted statement of facts.

A warrant bearing the caption, “THE STATE OF MONTANA, Plaintiff, — vs—J ON PASCHKE and SALLY JOHNSON, Defendant” was issued the same day. The premises to be searched were described as “1930 Mullowney Lane, Billings, Montana.”

[234]*234The warrant was executed shortly after its issuance. When the officers arrived at the residence they observed defendant Mason with 8% grams of hashish in his possession. Drugs were found at various locations throughout the house, including a room shared by Mason and another. Paschke and Mason were among a number of persons arrested on the premises as a result of the search.

On appeal appellants first argue that Judge Williams was not presented with sufficient probable cause to satisfy constitutional and statutory requirements for the issuance of a search warrant. The record clearly establishes that the only information before Judge Williams was that contained in the statement of facts heretofore quoted. Our inquiry must therefore be limited to the four corners of that document. Petition of Gray, 155 Mont. 510, 473 P.2d 532; State v. Bentley, 156 Mont. 129, 477 P.2d 345.

Appellants would exclude from that statement of facts the information contributed by the anonymous “known drug user”. Their objection is not that such information is hearsay, or even that it is double hearsay, but that the trustworthiness of the known drug user and the information he provided have not been adequately established.

It is clear that probable cause can be based on the hearsay statements of an anonymous informer. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; State v. Troglia, 157 Mont. 22, 482 P.2d 143. However, Aquilar requires that underlying circumstances which support either the credibility of the hearsay source or the reliability of his information must be provided.

In the affidavit under consideration here, two hearsay sources are involved — the “informant” and the “known drug user”. Since the affidavit identifies the informant as a source of reliable information leading to drug arrests in the past, it is apparent that this source satisfies the first of Aguilar’s alternative requirements. Appellants concede as much but challenge [235]*235the “credentials” of the known drug user since there is no allegation that he had previously proven to be reliable.

The information provided by the known drug user was that: (1) The known drug user had obtained drugs from Jon Paschke; (2) Paschke would be bringing more drugs into town; and, (3) Paschke would arrive on the evening of February 24, 1973. This information was transmitted to the informant by the known drug user along with the latter’s offer to sell drugs.

Since the affidavit fails to establish the known drug user’s credibility under the first of Aguilar’s tests, it must necessarily meet the second test by demonstrating the reliability of the information, independent of its source. We find its reliability to be amply supported by the facts found in the statement of facts: (1) the information was provided during an offer to sell drugs to the informer; (2) Paschke’s van appeared at the time it was reported that Paschke would return; (3) Paschke had been reported to be dealing in drugs in Billings over the past nine months, and (4) the same information was verified by two other sources.

The circumstances under which information is supplied can support its reliability. For example: Justice White’s concurring opinion in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, pointed out that admissions against interest are sufficient to establish probable cause, even though related through a hearsay source. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. In Thompson v. State, 16 Md.App. 560, 298 A.2d 458, the court held under circumstances similar to those here that since the seller had no cause to mislead his customer, the very circumstances gave reasonable assurances of trustworthiness of the information. On that basis alone the court in Thompson found that information given by an anonymous seller concerning his source was sufficient to establish probable cause.

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Bluebook (online)
527 P.2d 569, 165 Mont. 231, 1974 Mont. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-paschke-mont-1974.