State v. Walston

768 P.2d 1387, 236 Mont. 218
Montana Supreme Court·Decided December 16, 1989·No. 88-296·Published·Cited by 37 cases

Opinions

MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State appeals an order by the Nineteenth Judicial District Court, Lincoln County, suppressing physical evidence obtained pursuant to a search, under warrant, of the defendant’s home and automobile. The District Court held that the affidavit supporting the application for the search warrant failed to establish probable cause. We reverse.

The following issue is raised on appeal:

[220]*2201. Did the District Court improperly suppress evidence obtained under a search warrant:

a) which was supported by probable cause; and

b) which was relied upon, in good faith, by law enforcement officers?

On December 11, 1987, Donald Bernall, a detective with the Lincoln County Sheriff’s Office, applied for a search warrant authorizing the search of defendant’s residence at #6 Taylor Road outside Libby, Montana, and of his 1975 white Ford Mustang. Bernall applied for this search warrant after a confidential informant stated he had legally been in defendant’s residence at least twice in the past five months, and that while there, he had observed marijuana plants growing within the residence and marijuana in processed form at various locations throughout the residence. Bernall also stated, based upon his professional training and experience, that such a marijuana growing operation is “highly likely to stay in one location for long periods of time and not be quickly or often moved.” Additionally, the informant stated he had “recently heard” defendant admit to growing marijuana within his residence and to selling marijuana within the Libby city limits. This confidential informant had previously provided information to Detective Bernall which had proven true.

According to the affidavit, defendant owned only one operable automobile specifically described as a 1975 white Ford two-door Mustang, VIN 5R032156098, with a license plate number 56-30505. Defendant’s residence was also described with particular detail as a white trailer with aqua-blue trim, with an “add-on” and a “large quantity of firewood stacked on. the front porch,” located in the Berget trailer park on Parmenter Hill.

After considering all these facts set forth by affidavit, the justice of the peace issued a search warrant on December 11, 1987. The warrant authorized the search of defendant’s residence and operable automobile for marijuana, sale documentation, drug paraphernalia, and any other “fruits of the crime.” Law enforcement officers subsequently stopped defendant and searched his automobile. The search disclosed a bag of marijuana in the glove compartment, a pair of forceps and a marijuana pipe. A subsequent search of defendant’s residence revealed marijuana plants, various items used to grow marijuana and another marijuana pipe and pair of forceps.

On December 14, 1987, defendant was charged by complaint with the felony offense of criminal possession of marijuana with intent to [221] sell (Count I) and the misdemeanor offenses of criminal possession of dangerous drugs (Count II) and criminal possession of drug paraphernalia (Count III). An information was filed in District Court on January 4, 1988.

Defendant pled not guilty during his arraignment on January 11, 1988. He subsequently filed a motion, to suppress all evidence taken from his automobile and residence pursuant to the search warrant, which he alleged was unsupported by probable cause. Following a hearing on the motion on May 24, 1988, the District Court held that the affidavit offered in support of the search warrant application did not contain facts establishing probable cause for issue of the warrant. Consequently, the court ordered all evidence seized from defendant’s automobile and residence suppressed. The State appeals from this order.

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana State Constitution both protect a person’s right to be free from unlawful searches and seizures by requiring the existence of probable cause prior to the issuance of a search warrant. An impartial magistrate must determine the existence of such probable cause solely from the evidence in “the four corners of the search warrant application.” State v. O’Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64. The evidence sufficient to establish probable cause, however, is significantly less than that required for a conviction. Applicants need only illustrate the probability of criminal activity, not a prima facie showing of criminal activity. State v. Crain (Mont. 1986), [223 Mont. 167,] 725 P.2d 209, 210, 43 St. Rep. 1628, 1629.

To determine whether a probability of criminal activity exists meriting a search warrant, a magistrate must employ a “totality of the circumstances” analysis. This analysis requires an issuing magistrate to:

“(M)ake a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. The totality-of-the-circumstances analysis, used to determine the existence of probable cause, expanded upon the previous “two-pronged” analysis and effectively broadened the circumstances under which a search warrant would issue. The “two-[222] pronged” test had required an affidavit to reveal: (1) the basis of the informant’s knowledge (i.e., “the particular means by which he came by the information given in his report”); and (2) some of the underlying circumstances indicating either the veracity of the affiant’s informant or the reliability of the informant’s report. Gates, 462 U.S. at 228-29; see also Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L. Ed. 2d 723.

The facts in Gates would not have satisfied this “two-pronged” test, as the detective’s application for a search warrant was based upon an anonymous letter accusing the defendant of selling drugs and detailing an intended future drug purchase. Gates, 462 U.S. at 225, 103 S.Ct. at 2325. The anonymous letter did not disclose how the informant came by the information, and the anonymity of the letter prevented detectives from ascertaining the veracity of the informant. However, the United States Supreme Court held that the totality of the circumstances alleged in the affidavit, which included the facts contained in the anonymous letter as well as the findings of a subsequent investigation verifying many of the facts stated by the informant, justified the issuing magistrate’s conclusion that a probability of criminal activity existed.

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State v. Walston, 768 P.2d 1387, 236 Mont. 218 (Mo. 1989).

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