*1 MONTANA, STATE OF Respondent, Plaintiff and BARNABY,
PETER OLIVER JOSEPH BUTTERFLY,
a/k/a PETER OLIVER Appellant.
Defendant No. 05-013. January
Submitted
Briefs
August
Decided
MT 203.
For Appellant: Attorney F. William Helena. McGrath, For Respondent: General; Hon. Mike Attorney Joslyn Hunt, General, Helena; M. Attorney Long, Assistant Robert J. Lake County Attorney; Young, Attorney, Mitch Deputy County Poison.
JUSTICE Opinion MORRIS delivered the of the Court. Bamaby (Bamaby) Peter from appeals his conviction
¶1 District, County, operation Twentieth Judicial Lake for of a laboratory. part, part, clandestine We affirm in reverse in remand proceedings. for further following appeal: We review the on issues
¶2 Barnaby’s Whether the District Court denied motion to properly ¶3 suppress during evidence discovered the search of his residence. Barnaby’s properly Whether the District Court denied Batson
¶4 challenge. properly Whether the District Court considered alternatives to Barnaby, felony a first nonviolent
imprisonment sentencing when time offender. AND
FACTUAL PROCEDURAL BACKGROUND operation methamphetamine officers of a suspected Narcotics (Sheridan). laboratory Barnaby’s Sheridan involving residence June (Officer Fiddler), Fiddler a Flathead Tribal Police Officer Louis for a Investigator, applied Narcotics warrant February 11,
residence begins The for pertaining a warrant with information knowledge to manufacture methamphetamines. Sheridan’s of how February A that he and reported confidential informant (Minez) Corey taught methamphetamines Minez had been make (Galpin). production Ferren Minez for the Galpin police The arrested 10,2000. he had methamphetamines on March Minez confessed that taught methamphetamines by Galpin how to manufacture been taught how to police Galpin informed the also had Sheridan methamphetamines. produce investigators A “in reference” concerned citizen contacted July manufacturing methamphetamines
Sheridan of 2000. “citizen warrant the terms “concerned citizen” and application uses too, We, interchangeably use the terms interchangeably. informant” first-hand purposes opinion. reported of this The citizen Sheridan knowledge personal Galpin taught observations *3 stated that produce methamphetamines. application how The being for the Galpin serving lengthy sentence after convicted now production methamphetamines. of reports The that detail Sheridan’s application contains several
¶9 of production in the ingredients efforts to obtain used methamphetamines. detained Employees Target store Missoula attempted suphedrine five boxes of shoplifting Sheridan for the police to a May tablets on 2001. Sheridan confessed officer Sheridan Target attempted that she had to steal tablets. employee suphedrine admitted she had several boxes of tablets that stolen Target in past. July on spoke a citizen informant Officer Fiddler
¶10 Officer reported The citizen
who had been involved with Sheridan. period on some property Fiddler that Sheridan had lived his property Stuff’ his The had found a box labeled “June’s on time. citizen acetone, toluene, filters, several lye, coffee that contained red devil he knew application Fiddler stated plates.” “hot Officer in the items are used training from his those experience that his reported The also methamphetamines. citizen production of had lived during that Sheridan stained the time closet had been brown property. his Officer Fiddler stated in that materials are commonly stained during production brown
methamphetamines. The citizen informed Officer Fiddler that he found empty suphedrine boxes Sheridan’s vehicle and that he believed that Sheridan concealed the items used produce methamphetamines in the trunk of her car because Sheridan would never allow him to close to it. A drug agent force observed Sheridan purchasing two cans of
toluol from hardware store in Ronan on October 2001. The application stated that toluol constitutes a ingredient known in the production methamphetamines. A police tribal officer advised Officer Fiddler on November
2001, of information concerning the home of parents. Sheridan’s The officer stated that Sheridan had responsible been for watching her parent’s house for they two weeks while were out of town. Sheridan’s parents became ill with sinus problems shortly after they returned home. Officer Fiddler stated in the application that based on his experience he knows that it is common for people to have sinus problems they when exposed are to a location production where the methamphetamines place. has taken contains reports of two concerned citizens who
reported that Sheridan operated a methamphetamine laboratory at Barnaby’s residence. A concerned citizen contacted Officer Fiddler on November to report that Sheridan lived with a “Peter or Joe” Bamaby at Bamaby’s house near Coldwater Lane. The concerned citizen believed that Sheridan operated a methamphetamine lab at Bamaby’s residence. The application did not state the source of the citizen’s information. Another citizen informant contacted Officer Fiddler on November to report that Sheridan operated a methamphetamine at Barnaby’s lab application again house. The failed to state the source of the citizen’s information. agent An drag with the task force contacted a local pharmacist
January of 2002 to determine whether the pharmacist knew of people who had purchasing large been amounts of pseudoephedrine ephedrine products. The application stated pseudoephedrine
ephedrine are known to be essential ingredients production *4 methamphetamines. The employee reported that Sheridan visited the store at least once a week to purchase ephedrine products. The pharmacist reported also that she suspected Sheridan of the illicit use ephedrine products due to certain pharmacist indicators. The reported that Sheridan appeared “jittery,” had bags eyes, under her The always paid pharmacist
and in cash. knew these indicators of drug methamphetamine speaking use as the result of a task force with agent previous on a case. contact application The stated that Officer Fiddler made January 17,2002, personally citizen on who viewed a series
concerned Barnaby’s of odd events at residence after Sheridan’s arrival. The reported citizen that he knew Sheridan’s house arrival car, gray Cougar. The citizen presence of Sheridan’s living that he area reported knew Sheridan from the Arlee and also The belonged reported knew that to her. citizen vehicle spent Barnaby had time at residence Sheridan’s vehicle lot of previous two months. over reported that activities had The concerned citizen unusual been Barnaby
occurring at the residence since arrival of Sheridan’s heavy Barnaby The traffic to and from the reported vehicle. citizen day night, only all staying residence at hours of with visitors time. The observed someone for a short amount of concerned citizen up Bamaby’s door of house and then back Sheridan’s vehicle unload various items from the trunk. The citizen further stated that plastic out Barnaby tarps had built a makeshift barrier neighbors seeing Barnaby and items prevent unloading Sheridan prevented The the citizen from from Sheridan’s car. barrier also citizen viewing property. reported some movement around the The arrival, Barnaby burned a fire outside his home that before Sheridan’s year heating lodge, once or twice a for the a sweat but only purposes constantly. always during The fire burned now a fire burned almost periods strange activity at the house. all of mentioned application persons The warrant stated that past. They had application given reliable information in corroborating that resulted proven
all reliable with information been further they provided. from the The in arrests operated separate apart stated that all of the above informants other, participation. not aware of the other’s from each and were distinguish did not between confidential a warrant informants, informants, concerned citizens. citizen February the warrant Judge apparently signed McNeil February 11,2001. The warrant
2002, although was dated the warrant identified as Coldwater officers to search residence authorized Bamaby’s pursuant a search of residence Drive. Officers conducted items used in two later. The revealed various days the warrant drug paraphernalia. and other methamphetamines production *5 charged Barnaby operating The Sheridan with clandestine 45-9-132, laboratory MCA, September in violation of 2002. § Barnaby separately suppress and Sheridan moved to the evidence ¶19 during upon probable the search before trial a lack of discovered based Bamaby’s argued cause to search residence. Both that the search was Judge due to the fact signed invalid that McNeil warrant in 2001 and the officers conducted the search in The District Court likely with that agreed Judge the State McNeil had made a actually typographical signed February error and had the warrant on challenged Both validity grounds also the warrant’s on the authorized that it the officers to search a residence located at Drive, Barnaby’s Coldwater while house is at 1-12 located Coldwater Lane. Fiddler at the suppression hearing Officer testified as to he how Bamaby’s using
had determined address police compiled database through emergency Officer responses. Fiddler further testified that he up in grown Barnaby’s had the area and he had the location known house since he was a Officer child. Fiddler also attached a map of the a photograph area and of the house application to the warrant that Finally, described how to reach the house. Officer Fiddler testified that density five, in housing area, the low “maybe per square six” mile, unlikely. made misidentification of the house This evidence correctly satisfied District Court that the warrant described the to house search. Barnaby’s argued motion also much the information in application Sheridan,
contained for a pertained solely warrant such did provide probable information not cause to search his Barnaby residence. further contended that the information that did concern his residence did amount to sufficient evidence to establish challenged cause. Sheridan’s motion also the factual predicates used to support establish cause to the issuance alleged police the warrant. She had failed to corroborate The adequately response information received from informants. State’s brief asserted that Fiddler in Officer had stated the warrant that each listed in person the warrant provided reliable Neither past. Barnaby nor reply challenge Sheridan filed a brief this assertion. Bamaby’s request, At the District Court his suppression combined
hearing he “at exactly Sheridan’s after attested that least witnesses, exactly same if not would presented. same evidence” Barnaby arguments Counsel Sheridan and relied on the made support suppress regarding her Sheridan’s brief motion Barnaby explicitly joined State’s lack of corroboration. questioning brief. Their of Officer
arguments made Sheridan’s hearing Fiddler at on the address listed in suppression centered Barnaby’s The District denied application. the warrant Court motion suppress. proceeded jury The case then selection. State exercised two members, challenges Mary to remove tribal Lefthand peremptory (Michell). (Lefthand) Lefthand during and Ronda Michell had stated Bamaby’s dire that father was her brother. Michell stated adopted voir counsel, Joey Jayne (Jayne), good that she considered *6 challenge to a Barnaby peremptory friend. also used a remove tribal (DuPuis). jury, DuPuis member from the Steven challenges Barnaby objected peremptory then to the State’s use of
¶24 argued improperly Defense that the State chambers. counsel solely upon from the venire based their removed Lefthand Michell (1986), Kentucky forth in v. race violation of rule set Batson responded by L.Ed.2d The U.S. 106 S.Ct. State relationship that it had stmck Lefthand of her explaining because defendant, Barnaby’s and Michell because she was a close friend of attorney. Barnaby’s The District Court also noted that counsel had Bamaby’s venire. from the The District Court overruled stmck DuPuis objection. Batson Barnaby operating laboratory. The convicted of a clandestine jury
¶25 contending Barnaby a motion a new trial that the District filed for objection. had denied his Batson The District Court improperly Court The that Bamaby’s explained motion in a written order. court denied challenged of the tribal clearly the record indicated that two members Barnaby’s State, by good one considered herself a friend Barnaby. Court attorney, the other related The District was by noting the motion explained denying further its rationale for member, challenge tribal DuPuis. the State did not another 21,2004. sentencing hearing The Court held a October District of the fact imprisonment light for alternatives to argued
Defense according a first offender to 46-18- Barnaby § was nonviolent time Barnaby receive term MCA. Defense counsel recommended that a sentence The State recommended Department at the of Corrections. Prison, suspended. with five years ten at the Montana State eight Barnaby years at the Montana
District Court sentenced Prison, suspended. with three objected Barnaby to the sentence on the basis that the District adequately by did not alternatives as 46-18- required §
Court consider adequately District it responded MCA. The Court imprisonment. The sentencing considered the alternatives to written order issued the District Court stated the court had taken into account the nature of the offense this matter for which the court has any prior lack significant felony concerns record. The imposed provide District Court also stated that it sentence to prison punishment Barnaby for his opportunity with an rehabilitation. The 46-18-225, did order not mention criteria contained in § MCA. This appeal followed.
DISCUSSION Barnaby improperly contends that the District Court denied his motion to as the suppress evidence search his residence He
supported argues cause. also that the District Court improperly objection. denied his Finally, Batson Barnaby maintains that the District Court failed to consider adequately alternatives imprisonment imposing when his sentence. Suppress
Motion to adopted “totality We have of the circumstances” set test forth Illinois Gates 462 U.S. 103 S.Ct. L.Ed.2d 527, to supported evaluate whether probable cause issuance 243, 24, 301 408, 24, 10 warrant. State v. 2000 MT totality test, 24. Under the the issuing circumstances judicial determination, officer must make a practical, common sense given all the evidence contained in
warrant,
a
probability
whether
fair
exists that
contraband
evidence
a
Gates,
of crime
found
particular place.
238,
will be
in a
¶30 warrant state facts sufficient probable to show cause for the issuance of a A warrant. determination probable of cause does not require showing facts sufficient to make activity, rather, criminal the issuing judicial must only officer determine probability activity. that there exists a of criminal State v. 204, 210, (1993), 1219,
Rinehart
262 Mont.
864 P.2d
1222. Probable
solely
cause must
determined
from the information contained
application. Rinehart,
within the four corners of the search warrant
211,
reviewing
¶ begins The application for search warrant with credible production of Sheridan’s involvement in the methamphetamines. reported A concerned citizen from first-hand knowledge Galpin, a personal observations well-known manufacturer, methamphetamine taught produce Sheridan how to methamphetamines. report The first-hand of a concerned citizen Oleson, 1998 reliable information. State v. MT generally represents (overruled 503, 130, 14, 289 139, 14, 959 part Mont. ¶ ¶ ¶ 287, 19, 291 474, grounds Kuneff, MT Mont. other State v. ¶ ¶ 19). reported Galpin taught Minez 970 P.2d also ¶ methamphetamines. Sheridan how manufacture continuing The then charts a course of action gather the materials used to manufacture possess
Sheridan to methamphetamines through reports the first-hand of several reliable shoplifting Sheridan had been arrested several boxes sources.
suphedrine Target police tablets from a store admitted officer Target several boxes employee successfully shoplifted that she had finding A citizen previous reported of tablets on occasions. informant a box labeled “June’s Stuff’ that contained several items used A narcotics officer witnessed production methamphetamines. A cans of toluol from a hardware store. local purchasing
Sheridan two purchased ephedrine that Sheridan tablets pharmacist observed reported physical least once a week and that Sheridan had using methamphetamines. appearance person of a evidence of Sheridan’s involvement Bamaby contends that probable cause to methamphetamines does establish
production cases, all agree that it does not follow in search his residence. We suspect guilty, cause “simply probable the existence of to believe to search his residence.” State Kaluza there also (citing United States v. 262 Mont. 865 P.2d (9th 828). 1979), “But it is also clear that Cir. 596 F.2d Valenzuela ‘commonsense and proper a search warrant interpreting cause to may result in the inference realistic fashion’ particular place.” in a objects criminal are located believe that (citation omitted). Valenzuela, F.2d at 828 methamphetamines of Sheridan’s involvement with evidence contained along with the other information
must be considered Marks, 2002 MT See State v. St. application. 2001 MT 23; Gray, *8 11, 775, A 38 P.3d concerned citizen contacted Officer ¶ 17, 2002, January report personally
Fiddler on to that he viewed spending Bamaby Sheridan’s car a lot of time residence over the at previous two months. The citizen stated that he knew Sheridan from the Arlee report area knew the car that she drove. That frequent constitutes rehable presence information of Sheridan’s at Barnaby’s Oleson, a report separate residence. 14. The concerned 7, 2001, citizen who contacted Officer Fiddler on November also contained information that part-time Sheridan resided at least at Bamaby’s. pertaining The information to Sheridan possesses probative value determining probability
when whether fair exists the items used manufacturing methamphetamines may be found at Barnaby’s residence. “The critical element in a reasonable search is not suspected that the of the property owner is of crime but that there is specific ‘things’ reasonable cause to believe that the to be searched for and seized entry sought.” are located on the to property which Daily (1978), Zurcher v. 436 U.S. 98 S.Ct. Stanford 1976-77, 56 L.Ed.2d. 525. We it appropriate Gray, deemed to impute Gray suspicious activity engaged companion, his Wallace, assessing Marks, probable Similarly cause. in St. we determined that corroboration criminal conduct St. Mark’s Torres, companion, imputed could be to St. Marks. The same holds trae for corroboration Sheridan’s conduct in this case. We emphasize that presence Sheridan’s mere at the house does
not amount to sufficient Barnaby’s cause residence. Kaluza, See at P.2d at 264. The information relating to methamphetamines Sheridan’s involvement with
presence Bamaby’s at not so compelling that it establishes Barnaby’s own in manufacturing involvement methamphetamines. may The support information conclusion that methamphetamines may instruments used to manufacture residence, Bamaby’s however, found at when considered in combination with other information totality under
circumstances test. See State v. Holstine pertaining information to Sheridan must be evaluated in conjunction specifically suspicious related illegal Barnaby’s at A concerned citizen activities residence. contacted 7,2001, on report they Officer Fiddler November believed that laboratory Bamaby’s Sheridan operated methamphetamine A informant contacted Officer Fiddler separate residence. citizen operated Sheridan report November laboratory January residence. The methamphetamine *9 presence citizen who Sheridan’s report reported of the concerned a Barnaby’s reported viewing series of personally at house also reported The since Sheridan’s arrival. citizen suspicious activities observed, and the among things, heavy he other traffic to from Barnaby day night at all hours of the and with visitors residence only time; a short of that someone backed staying for amount way the door of the to unload items Sheridan’s car all the house a to hide trunk; from the and barrier had been built on the residence viewing and from further property anyone movement on the block being the items unloaded from trunk. Barnaby evaluating a the conquer” approach uses “divide for the
sufficiency application dismissing a warrant. After of the for insufficient probable an for concerning information Sheridan as basis cause, of Barnaby engages application a mechanical Reesman separately the three citizens. reports evaluate the of concerned Barnaby argues reports the of the concerned citizens who Fiddler on and November contacted Officer November analysis in a as the provide support probable no cause warrant the information on application fails to state whether the citizens based Barnaby personal See 29. their own observations. 17,2002, January on report
maintains that the of the concerned citizen the required application corroboration because warrant independent the the circumstances under which information failed to describe stating that known, despite explicitly the application became events described in personally concerned citizen observed the Oleson, report Moreover, he that this last does warrant. claims activity, alleges “odd events” and allege illegal merely not but “strange activity.” disagree. We evaluating probable cause is question when critical particular of a report requirements meets the
whether individual test, states sufficient facts whether the as whole but Gates, at 230- cause. See U.S. probable a determination of support probative little value possess at 2328. Factors that 103 S.Ct. own, totality of the circumstances their when considered under of substantial evidence test, support for a determination provide can existed when considered combination cause conclude Holstine, at 860 P.2d at with other information. all whether
We must determine
application-Sheridan’s production involvement house, Bamaby’s her at methamphetamines, presence continued laboratory operated methamphetamine two that Sheridan reports house, activity Bamaby’s Bamaby’s and the report suspicious house Sheridan’s arrival —amounts to a since substantial basis determining supported whether the issuance Gates, 238-239,
warrant.
Dissent,
61-71.
concede that
slightly
We
this case deviates
our
¶¶
decision in
as
easily
Reesman
we cannot
reconcile Reesman’s strict
rules requiring
the
independent police
flexibility
corroboration with
of
totality
the
poses
circumstances test. Probable cause
a fluid
concept turning on the
in
probabilities
particular
assessment of
a
context,
readily,
usefully,
factual
“not
even
or
reduced to a neat set of
legal
Gates,
232,
rules.”
¶42 We key represents determining corroboration a element whether probable cause exists issue warrant. We also admonish police officers to independently corroborate information from sources
232 241-42, reliability. Gates, 462 S.Ct. at
questionable See U.S. 103 simply proposition determine that the set forth Reesman We only method of independent police represents that work totality wrong test is corroboration under the circumstances as justices specially and one dissented a matter of law. Two concurred opinion very of this issue. majority’s from the Reesman because Reesman, 49, 80. ¶ ¶ joined determining that Regnier probable Justice Court no judicial officer issue a support
cause existed to the decision Reesman, Regnier opinion in his concurring warrant. 49. Justice ¶ restrictive,” however, notion that rejected as “too Court’s accomplished through police investigation. corroboration must Reesman, J., He that (Regnier, concurring). emphasized 49 ¶ accomplished police could be other means” than “corroboration J., Reesman, Regnier (Regnier, concurring). Justice investigation. ¶ investigation” recognized myopic “police focus on Court’s judicial important attention from the more diverts officer’s establishes question ofwhether warrant J., (Regnier, concurring).
for the search. 72-191, holding our Dissent, mischaracterizes as The second ¶¶ array relate calling precedents doubt an overruling into finding cause to only this decision that each affirms 272, Meyer, 2004 MT example, For ¶¶ issue a search warrant. 185, 31, P.3d is the first in 31, 323 Mont. ¶¶ ¶¶ being overruled or called into string of cases cited the Dissent vitality continued glancing upon strike not even a blow
doubt. We in Meyer that discuss Meyer. paragraphs Dissent cites two tangentially timeliness of a we do not address: the issues that even we deem as reliable an proposition and the warrant Meyer, against their interest. informant that makes statement vitality of no on the continued similarly Our decision strikes blow Bowman, See, MT e.g., that cite Reesman. other cases (using Reesman *11 game anonymous tip corroborated guidelines to determine that warden bull pierced cape from by learning taxidermist that bullet from 25-27, 314 25-27, 66 elk); Olson, MT ¶¶ v. ¶¶ State report to determine that guidelines (usingReesman P.3d 25-27 ¶¶ provided meth lab non-anonymous, concerned citizen who witnessed Grams, warrant); State 2002 MT support v. probable cause to sufficient g 17-19, (usin P.3d 17-19 17-19, ¶¶ 311 Mont. ¶¶ reports personal Reesman conclude that five informants’ based on against adequate their interest for provided observations basis warrant). agree We fully reports reliable those cases probable constituted sufficient cause to a search warrant. We support simply unduly restrictive rule been overrule that never should have imposed long-established totality under flexible Gates, 230-231,
circumstances
test.
motion suppress. issuing judicial The officer had a substantial basis determining for Bamaby’s cause existed to search considering together residence all provided the information in the totality warrant under circumstances The test. warrant highly contained credible evidence of Sheridan’s involvement
production of methamphetamines presence Bamaby’s and her Two separate residence. concerned citizens contacted Officer Fiddler to report that a operated methamphetamine laboratory Sheridan Bamaby’s residence. Another concerned citizen personally viewed series of suspicious Bamaby’s activities at following residence Sheridan’s arrival. fact that the for a warrant did not specific include a account of the circumstances under which some events, informants viewed the or whether the two citizens based their reports personal observations, preclude does not court
finding probable relating cause. The information to Sheridan and the reports of concerned citizens provide finding probable basis case, own, although reports, none of on its satisfy
Reesman criteria. Challenge Batson Barnaby next contends that District Court improperly denied challenge.
his We findings Batson will defer the trial court’s fact erroneous, clearly considering unless when trial court’s on a ruling that a challenge litigant challenges has exercised its use of peremptory manner, in a discriminating and will review the trial court’s Ford, novo. MT law de 517, a three-prong Batson set out test to determine whether peremptory challenges discriminatory
State exercised its in a manner. First, the must out a prima purposeful defendant make facie case of *12 Ford, case, the prima To make a facie defendant
discrimination.
16.
¶
Batson,
belongs
cognizable
group.
to a
racial
must show that he
she
may
rely
The
then
on the
Batson,
¶49 a step, provide the State must race- proceed we the second where Ford, its use of strikes. 16. explanation peremptory ¶ neutral for if then determine the defendant has Finally, the trial court will Ford, purposeful established discrimination. Barnaby objected immediately after the State removed Lefthand Court did not rule whether
and Michell from the venire. The District prima a facie case for discrimination. Barnaby presented Nevertheless, striking its for provided explanations the State sufficiency on jurors. The Court did not rule the State’s District did not strike justifications, noted for record that State but member, Barnaby’s DuPuis, a from the venire and overruled tribal objection. Barnaby improperly applied that the District Court contends Barnaby test. characterized the District step
third
of the Batson
finding
challenge
upon
denial of his
as based
court’s
Court’s
Barnaby correctly
did not strike DuPuis from the venire.
State
simply
may
deny
court
relief
because
State
points out that a
jury
race
under
particular
did
all
not strike members
(6th
1999),
represents factual Ford, (holding clearly unless erroneous. See findings fact findings clearly unless to the trial court’s court will defer appellate erroneous). Therefore, fully record develop the trial court must - all facts and information a record that includes relevant review decision, a full as well as by the trial court render its upon relied Ford, rationale. explanation of the court’s Court that the District the record demonstrates review of Our based, on the race Barnaby’s objection large part, overruled
properly prosecutor. provided The State provided by the explanations neutral explanations for according race neutral both Lefthand and Michell step Ford, the second See 16. It that it used a explained Batson.
peremptory challenge Barnaby’s Michell because she considered good attorney trial friend. The State removed Lefthand because adopted father her brother. The District Court admitted during support into evidence notes taken dire voir its explanations. race-neutral The District then noted Court
Bamaby’s Thus, counsel removed DuPuis. the fact that the State did not strike DuPuis represents only one several relevant facts that the *13 in overruling Barnaby’s objection. District Court considered Although developed District Court a record at the time
¶54 of Barnaby’s facts, objection that included all relevant court failed to a provide explanation full of its rationale overruling for the Batson objection required Parrish, 112, as 19, 327 State v. 2005 MT Mont. ¶ District simply ¶ The Court overruled Bamaby’s objection hearing after State’s explanations noting the State did not explanation strike DuPuis. This full proves necessary any to our review of the merits of Batson-type challenge.
Parrish, We admonish the District to provide
¶55 Court more detailed reasoning for the basis of denying challenge, a Batson even cases objects where the defendant to simply the State’s use of peremptory challenges specifically invoking instead of the Batson language. We uphold decision, however, the District Court’s because court Bamaby’s overruled objection ruling Batson before our in Parrish.
Furthermore, the record demonstrates that the provided highly credible race-neutral explanations. remind district We courts follow procedural mandate of Ford and Parrish to build a record and a provide explanation full for the denial of a challenge Batson future to permit cases this Court to of adequately review denial such a challenge appeal. on
Sentence finally Bamaby contends that the District Court failed to consider adequately imprisonment 46-18-225, alternatives to under MCA. We § imposition a district a legality. review court’s of criminal sentence for questions We review the trial interpretation sentencing court’s regarding statutory whether interpretation to determine it correct. McDanold, 2004 MT P.3d
1076, ¶ 12. Barnaby felony is a first time A “nonviolent nonviolent offender. than felony person felony offender” is a who has committed a other by 46-18-104(2), operation The “crime as defined MCA. of violence” § 45-9-132, MCA, not of does laboratory of a clandestine violation § of See 46-18- any fall within definitions of a “crime violence.” § 104(2), laboratory recognize operation MCA. of clandestine We Offender offense” under the Sexual Violent constitutes “violent 46-23-502(9)(a), MCA. act’s Registration Act. Section That inclusion laboratory specifically one of the operation a clandestine not enumerated offenses” does affect the classification “violent The terms “crime of Bamaby felony as a “nonviolent offender.” separate relate to statutes that serve violence” “violent offense” encompass the consequence, as a do not purposes different identical set crimes. 46-18-225(1), MCA, requires a district court first Section sentencing a imprisonment alternatives when “nonviolent
consider
sentencing
A
examine the
criteria
felony offender.”
district court must
46-18-225(2), MCA,
considering
imprisonment.
alternatives
§
231, 902
46. The
See State v. Pence
an
requires that
if a district court sentences such
statute further
it
why
reasons
did
prison,
judge
offender to
shall state the
on the criteria
46-18-
imprisonment,
select an alternative
based
§
231, 902
46-18-225(3), MCA; Pence,
because of the nature of record, provide punishment opportunity and to *14 mention, however, any of failed rehabilitation. The District Court to 46-18-225(2), MCA, why, and fails to discuss the criteria set forth in § factors, an alternative considering inappropriate those it deemed when Barnaby’s of sentence Thus, portion to we vacate that imprisonment. light in of the consideration his sentence
and remand for further 46-18-225, in MCA. criteria set forth § proceedings. in further part and remanded for part Affirmed
¶60 GRAY, WARNER, LEAPHART and JUSTICES CHIEF JUSTICE RICE concur. dissents.
JUSTICE COTTER Because I would of Issue 1. disposition I dissent from Court’s ¶61 suppress Barnaby’s denial of motion the District Court’s reverse home, reach I would not during the search his evidence discovered Issues 2 and 3. cited in information There a multitude miscellaneous was how to Sheridan knew suggest for Search Warrant
Application methamphetamine, purchasing cook and that she had been observed precursors methamphetamine than possession more However, assuming Application contained all one occasion. information, during nearly years
relevant at no time two investigation up leading to the search of home were the police engaged tribal alerted Sheridan was somewhere that,
actual manufacture of And I methamphetamine. given submit sparse possessed concerning and unreliable information these officers Barnaby, support there was no cause to the conclusion that a lab was located in his home. Application reflects that a concerned “reported” citizen “living Barnaby,”
Sheridan was a and that he/she “believed” that operating methamphetamine Sheridan was a lab his residence.
Then, a “citizen informant” reported operating that Sheridan was methamphetamine Barnaby lab at As residence. the Court concedes at Application did not state the source of either information, citizen’s nor did it indicate whether either person personally observed the operation. lab remaining involving The sole allegations Barnaby, as detailed 15-16 of the Court’s Opinion, ostensibly summarize activities Bamaby’s that, alone,
observed on
property
standing
were neither
unlawful nor illegal.
persuasive
The Court cites as
the fact that
Barnaby
his
apparently
steps
prevent neighbors
observing
took
Ironically,
activities.
we have held
steps
that the
taken
person
prevent
his
observation of
or her activities
of an
constitutes evidence
expectation
privacy,
goal.
actual
reasonable
lawful
See State
74-75,
Bullock
901 P.2d
and State v.
Siegal (1997),
250, 274-75,
Mont.
overruled
part
grounds by
Kuneff,
and on other
1998 MT
Here, however,
contributes cause to search his home. analyzed In possible this Court the several of an sources analysis informant’s information. From this emerged three-prong repeatedly test that has been used this Court to determine whether probable cause exists the issuance of a search warrant:
1) the informant anonymous provided Was or was the information hearsay? so, independent If corroboration his or her required; information is
2) If the informant anonymous, was criminal
provided personal activity based on observation of or was *15 hearsay? hearsay, independent If the information corroboration required; is 3) non-anonymous from a informant was
If the information activity, gathered of criminal was the by personal observation informant reliable? Here, not us the the does tell whether Application 28-31. anonymous, does it relate that the
“concerned citizen” was nor on provided by personal either citizen was based information Thus, and its knowledge. progeny, under Reesman considerable required. oftheir was No such independent corroboration case, yet sought in this we find no fault. corroboration was or obtained for that “the fact that the contrary, To the we conclude under specific did include a account of the circumstances warrant not events, whether the two citizens informants viewed the which some observations, a court reports personal preclude does not based their finding probable proceed See 46. then conclude cause.” We flexibility the that “strict rules” cannot be reconciled with Reesman’s that States “totality of the circumstances” test the United of the v. Gates. See 41. Supreme espoused Court Illinois result, exaggerates complexity justifying In its the Court both Court importantly, Most oversimplifies
of Reesman and Gates. requires that acknowledge Gaies-like refuses Aeesmcm— circumstances, consider, among totality magistrate hearsay knowledge” persons supplying “veracity” “basis Gates, at 103 Ct. at 2332. The Court information. 462 U.S. S. statements,” “whollyconclusory or statements
reaffirmed in Gates that being committed, that a crime is will that an informant “believes” cause magistrate’s that a determination do. The Court said Gates, ofthe conclusions of others.” “cannot be a mere ratification bare Gates, police In conducted 103 Ct. at 2333. 462 U.S. S. tip. informant’s work to corroborate the
significant independent police provided corroboration fact, independent In it was because of that there was the Court concluded police Gates Gates, U.S at basis for the issuance warrant. substantial Ct. 103 S. Rinehart, analyzed an Similarly, in we tip. Crimestoppers’ upon anonymous part warrant that relied itself, tip, the Crimestoppers’ The Court concluded investigation to without further support inadequate information, it merited consideration agreed but corroborate Rinehart, 262 Mont. at test. circumstances” “totality under the *16 in 212-13, 864 Notably, totality at of the circumstances P.2d 1223. the reliable, non-anonymous Rinehart included information from marijuana operation first-hand, and had informant who seen the detail, police, great operation. described to the in its location and Rinehart, 212, 864 essence, 262 Mont. at P.2d at 1224. In the Rinehart magistrate tip the to corroborate the known Crimestopper used Rinehart, informant’s first-hand information. 262 Mont. at
P.2d Here, contrast, by there was no known first-hand informant and ¶68 fact, independent police investigation. independent no In there was no activity Bamaby’s corroboration of criminal home-from
source-police Ignoring deficiency, glaring otherwise. we stretch beyond totality the “flexible” of the circumstances test its intended limit, concluding in “wholly conclusory essence that one statement” (see Gates, infra) from unreliable source magically becomes reliable by virtue with pairing of its a similar statement from a second Respectfully, unreliable source. all the discussion the world cannot disguise fact the that we have taken two unreliable allegations of doings, report
uncorroborated criminal added in a activities, detailing indisputably front-yard and, lawful because of home, Sheridan’s occupant association with the of the at a arrived sum finding home, Barnaby’s reality search when in the sum still question, “totality is zero. Without which supports Barnaby’s
circumstances” we conclude nearly home is not as substantial or reliable as were the circumstances either Rinehart or Gates. The troubling aspect most Opinion Court’s is its pronouncements regarding Reesman. Whereas once Reesman was law, by relied upon rulings district courts and this Court dozens of opinions, analyses, law enforcement countless its “neat of legal longer now, set rules” no apply; guidelines merely its are why “useful.” cannot 41.1 understand we would choose to abandon guideline against police sufficiency a clear officers which evaluate justify warrant, of their evidence to issuance of favor of no guidelines effectively replaced at all. We of predictability have a level one of uncertainty with and randomness. long enjoyed special Montana homes under our protection have said,
search and jurisprudence. seizure We have “The home is the most ” Graham, ‘particular places.’ sanctified of all MT 22, 325 22, 103 however, Today, we have requirements home, relaxed the for a for a search warrant man’s accusations, finding vague coupled guilt by uncorroborated association, justify And enough issuance of warrant. we process carefully analyzed undone our search warrant have in the long-established federal and state jurisprudence. In accordance with law, suppress granted. have been Barnaby’s case motion to should Court’s I therefore from our decision affirm District dissent suppress. motion denial of vigorously, respectfully, NELSON but dissents.
JUSTICE right Although the to be unreasonable searches free from home, home, nonetheless, than encompasses seizures more protection. the raison d’etre the constitutional historically against unreasonable search and seizure people’sprotection English common-law maxim in their “houses” drawn from his Minnesota v. Carter 525 U.S. “Aman’s home is castle.” J., (Scalia, concurring) S.Ct. L.Ed.2d “[EJvery *17 original). upon man’s house is looked the (emphasis in Blackstone, 3 the Laws to be his castle.” W. Commentaries on law (1768). The home is the most all England 288 sanctified places.” “particular 110, 385, 22, 22, MT 103 Graham, 2004 325 Mont. P.3d ¶ ¶ State v.
1073, ¶ 22. notwithstanding, today the this Court sanctity home by person’s into search of a residence law endorses the intrusion and wholly untimely on unreliable information. enforcement based finding the were essential to a Specifically, tips three Barnaby’s little more than residence consist of by of unknown suspicions reported and bare informants
innuendo Nevertheless, tips the these unsubstantiated veracity. accepts Court of unlawful reports” “highly credible evidence” “reliable 34,37,41,46. See being at residence. activities conducted “highly “reliable” and why reports are told these are Notably, we never the Perhaps deferring to “concerned citizen” credible.” the Court is by applicant used the search warrant “citizen informant” labels Yet, tips. the the provided three persons reference the who applicant’s for support no factual whatsoever the application contains Moreover, the support does use of these labels. persons these were alleged by activities that the unlawful
conclusion Accordingly, the application. on or about the date of occurring probably done, the as the Court has presuming, no factual basis for there is tips. reliability and timeliness of these essential effects, aside, Its Cotter reasoning Opinion Court’s as Justice (and, dissenting opinion, astonishing notably, out in
points her unsolicited1) change in law of search and sea seizure Montana. our case guise avoiding application[s]”
Under “mechanical law conquer” approach evaluating “divide and search warrant 38, only ignores the Court not individual applications, broad ¶ II, privacy protections by afforded Montanans Article Sections 10 and Constitution, (1995), 11, see of Montana State v. Bullock 272 Mont.
361, 383-84, 901 61, 75; Siegal 250, 263, P.2d 281 Mont. 176, 264, grounds P.2d overruled in part by other v. MT Kuneff, State 19, but also calls into question multitude of well-established
precedents by handed down Court the adoption since of these guarantees years constitutional ago. Tellingly, analysis sustaining these actions the Court is thin homeopathic “as as the soup boiling pigeon was made shadow of been Lincoln, starved to Abraham Stephen death.” Sixth Debate with A. (Oct.
Douglas, Quincy, 13, 1858), Illinois in The Collected Works of ed., Abraham Lincoln vol. 279 (Roy Rutgers P. Basler 1953). University Press Indeed, approach the Court’s here emasculating seems be one of
the rules to accommodate inability of some in law enforcement and criminal justice system comply instance, with them. For some Reesman, been under chafing have our decision in 2000 MT since it was handed down-but no longer. Although the Court approach assessing claims that its new only applications slightly” search warrant “deviates see simple nothing fact is that in the Court’s to the approach search warrant issue to-or here conforms even resembles-the set step-by-step framework we forth in Reesman.
Compare Reesman, 31-37 & 46 of Court’s Opinion the with 28- ¶¶ ¶¶ Indeed, outright the Court’s contra-Reesman approach reflects rejection framework, of notwithstanding. that the Court’s assurances Likewise, Opinion under the Court’s we accept now applicant’s warrant characterization of an informant “concerned as a 1 243, 408, approach The Court’s State v. 2000 MT Mont. vis-a-vis 301 83, below, entirely point discussed is of its own initiative. At no in its brief does precedents opinion the the State even hint that Reesman and be collected should approach argue totality-of-the-circumstances Reesman Nor the State that the overruled. does applied precedents subsequent in our to should To the as contrary, be modified. argues the State that “the Reesman test” met in this case.
242 value, 31, 34, 37, 38, 41, at face see
citizen” or “citizen informant” necessary words, longer 46. In it no is to substantiate such other facts, is labeling supporting significant given with which by incriminating provided by person information who was motivated citizenship with crime is good report presumed to chance encounter (1992), reliable, Opinion; Valley the see 31 of Court’s v. ¶ Oleson, 1258; P.2d 1998 MT part overruled in ¶ today’s by Kuneff, similarly helpful 19. A outcome of grounds other blanket, generalized Opinion is that the Court sanctions the use application concerning the of a the assertion at end search warrant In the reliability application. of all the informants mentioned the future, reviewing magistrate: the applicant all an need do assure given “The in this have reliable informants mentioned proven All past. information the have been reliable information corroborating in arrests from resulted separate All of the informants are they provided. above other, others’ from each and are not aware apart specifying particulars task of participation.” tedious sure, the longer required. no To be supporting such an assurance is police independently officers to corroborate “admonish[es]” Court 42; reliability,” yet, “questionable information from sources of reality, no at hand makes it clear that Court’s resolution of case failure to do so. consequences flow an officer’s faced officers challenges I am indifferent While crime,” ferreting enterprise in “the out
engaged competitive often 10, 14, 68 367, 369, the (1948), S.Ct. v. United States 333 U.S. Johnson simply may guarantees simple fact is that we not vitiate constitutional v. See Davis they gathering practices. evidence because burden (“We (2006), may not . . . vitiate Washington 126 S.Ct. they allowing guarantees have effect
constitutional when (1961), 648, 81 S.Ct. free.”); Mapp Ohio 367 U.S. guilty go v. (“ bring and their officials to
1684, 1688 ‘The efforts of the courts are, they are not to be aided praiseworthy guilty punishment, by years of endeavor great established principles the sacrifice of those suffering resulted in their embodiment which have ” (quoting United States law of the land.’ Weeks fundamental fact, it 341, 344)). precisely matter S.Ct. As a U.S. enter homes that constitutional ability the State’s our restrain exist searches and seizures protections against unreasonable *19 Kennedy recently analogous As observed in place. first Justice context, security in are to the and the home central Fourth
privacy and guarantees explained Amendment’s our decisions as of the This common beginnings Republic. understood since understanding respect allegiance ensures for the law and to our institutions, it is an transmitting and instrument our generations meaning Constitution to later undiminished in and repeating force. It bears it is a matter if serious law sanctity by enforcement officers violate the of the ignoring home requisites Security lawful entry. subject must not be by contempt. erosion or indifference Michigan J.,
Hudson v. (Kennedy, 126 S.Ct.
concurring part concurring judgment). and admonition, Notwithstanding today the Court substantially our privacy security by weakens citizens’ and in their homes virtue of the remarkable and extensive transformation Montana search and seizure longer may proclaim law effected this decision. No we II, provide
Article Sections 10 of the Montana Constitution greater protections privacy provided by of individual than are Rather,
federal constitution. the determination of probable cause to search dependent issue a warrant is now on the completely whim of appellate whatever trial judges happen reviewing to be
application. agree I Justice
¶79 While Cotter’s well-reasoned and well-written dissenting opinion, I separately cursory write to underscore the nature analysis alarming of the Court’s and the implications disposition of its essentials, unlawful claim. long Reduced its so buoyed by as a search warrant the usual mantra of general platitudes, pretty anything much will suffice hereafter to issue information, hearsay, warrant-stale informant suspicion, innuendo, guilt association, work, sloppy police in complete disregard long-established precedents this Court’s and proper judicial oversight. all-and, case unfortunately, This has it little else. carefully
It through is therefore instructive to walk each of the so, set the doing assertions forth in at issue. Before however, necessary fully it is applicable review law to the applications. assessment of search warrant Assessing
I. The Law of Search Applications Warrant
A. Probable Cause The Fourth Amendment United States Constitution issue, cause, upon probable “no shall
provides that Warrants but affirmation, place Oath supported by particularly describing or Const, searched, things to be seized.” U.S. persons and the added). II, Similarly, amend. Section (emphasis IV Article provides place, “[n]o Montana warrant to search Constitution *20 thing describing place seize shall the person or or issue without seized, thing probable or the or to be or without person be searched cause, writing.” or Mont. supported oath affirmation reduced Const, added). II, 11 (emphasis art. § “probable safeguard standard seeks both “to citizens cause” privacy and from from rash and unreasonable interferences with leeway enforcing charges give unfounded of crime” and “to fair for the (1949), Brinegar law in v. United States community’s protection.” the 176, 160, 1302, 338 U.S. 69 S.Ct. cause, defining point at which the individual’s
Probable yield must to the interest privacy governmental interest for by searching incriminating criminal investigating behavior items, practical, concept procedure, is a nontechnical of criminal compromise that has been found amounting effect best interests, on hand the accommodating opposing often the one protected interest of the citizen to be unreasonable on and on the other the privacy security, intrusions his community by efficient adequately protected interest of the to be law enforcement. Sundberg (1988), 115, 119, 765 736, 739 (citing P.2d 235 Mont. 1311). 176, U.S. 69 at
Brinegar, 338 at S.Ct. observed, however, Supreme probable- “[t]he As the Court has quantification into precise cause is of definition or incapable standard (2003), 366, 371, 124 Maryland Pringle v. 540 U.S. S.Ct. percentages.” “ ..., 795, 800. as the dealing probable ‘[i]n This is because cause technical; These are not very implies, probabilities. name deal with we fife everyday on they practical factual and considerations are the ” technicians, men, legal act.’ State prudent which reasonable (1993), (quoting 1222 864 P.2d v. Rinehart 262 1310). words, “probable In Brinegar, U.S. 69 S.Ct. at other 338 at probabilities concept-turning a fluid assessment usefully, or reduced to readily, even particular factual contexts-not 232, 103 (1983), 462 Illinois v. Gates U.S. legal neat set of rules.” S.Ct.
245 Notwithstanding concept, Supreme nature of “fluid” “ substance of all the definitions of ‘[t]he Court has observed ” guilt,’ Pringle, 540 ground cause is reasonable for belief (alteration 371, 124 at at in original) (quoting Brinegar, U.S. S.Ct. 800 1310), 338 U.S. at S.Ct. at which means “less than evidence conviction,” justify would but “more than bare which condemnation (internal suspicion.” Brinegar, S.Ct. at 338 U.S. omitted);
quotation marks see also State v. Bennett 158 Mont.
496, 499, 493 1077, 1078 (same); 235, 103 Gates, 462 U.S. at S.Ct. (“only probability, showing,
at 2330
and not a
facie
prima
cause”) (internal
activity
quotation
criminal
is the
standard
omitted). Thus, probable
marks
cause exists where the facts and
reviewing judicial
knowledge
circumstances within the
officer’s
and of
reasonably
which he or she has
trustworthy information are sufficient
in themselves to warrant a
person
reasonable caution in the belief
being
offense has been or
committed
evidence thereof
175-76,
be found in
suspected place. Brinegar,
will
and circumstances warrant an would honest belief of a been, mind reasonable and man prudent that the offense has or is being, property sought committed and that place exists at the *21 (internal omitted)). designated.” quotation marks Importantly, probable determination of cause in this context by be made a judicial Gates, “neutral and detached” officer. 462 at explained
U.S. 103 S.Ct. at As the 2333. Court in Johnson v. (1948),
United States 333 68 U.S. S.Ct. 367: Amendment, point The of the Fourth which often is not officers, grasped by zealous is not that denies it law enforcement of support the usual inferences which reasonable men draw protection from evidence. Its requiring consists in those by magistrate inferences be drawn a and neutral detached instead being by of judged engaged competitive the officer in the often enterprise ferreting Any assumption of crime. out that evidence support sufficient to a magistrate’s disinterested determination to justify making issue a search warrant a search will the officers nullity without a reduce and warrant would the Amendment to a only leave the of people’s police homes secure discretion Crime, is, privacy officers. even in the of own of quarters, one’s course, grave society, of concern and the law crime allows such showing. right to be of proper reached officers thrust 246 concern, only to grave into a home is also a not
themselves society individual but to a which chooses to dwell in reasonable right privacy of security and freedom surveillance. When is, rule, reasonably yield right to the as a must officer, by judicial a or Government policeman decided agent. enforcement omitted). (footnotes
Johnson,
13-14,
369
conception,” 462 at 103 S.Ct. omitted), marks Court in Gates abandoned the quotation Supreme Aguilar its “rigid” two-pronged test had evolved from decisions (1964), Spinelli Texas U.S. S.Ct. v. United v. n.4, Gates, 462 at 229
States
393 U.S.
[t]he make task whether, given all the circumstances set common-sense decision him, “veracity” including in the affidavit before forth information, knowledge” persons supplying hearsay “basis probability fair that contraband or evidence of crime there is a duty reviewing And the of a particular place. will be found in a “substantial simply magistrate to ensure that the court is concluding]” cause existed. basis for ...
Gates, 238-39, (ellipsis at and second U.S. at 103 S.Ct. flexible, easily “this original). The Court reasoned that
alteration public will achieve the accommodation applied standard better requires” than does a that the Fourth Amendment private interests every tip.” informant’s “rigid specific demand that ‘tests’ be satisfied Gates, 231, 239, 103 S.Ct. 462 U.S. lead, rejected also “the Following the federal this Court ‘prongs’ refinement’
‘labyrinthine body built over the judicial (1983), 205 tests,” Kelly Aguilar-Spinelli ‘spurs’ *22 totality-of-the- 417, 1032, 1044, in of the 438, P.2d favor 668 whether, determining under Montana approach for circumstances
247
warrant,
law,2
cause exists for the issuance of a search
see
440,
1045;
(1985), 217
Kelly,
individual State Bullock 272 Mont. 901 61, Constitution, unlike Indeed, 75. counterpart, P.2d our its federal explicitly right privacy. Specifically, ensures Montanans the Article II, 10, right privacy “[t]he Section states that individual is essential well-being society infringed shall of a free not be without showing compelling of a state interest.” This unique constitutional and, therefore, language greater right affords Montanans a to privacy protection broader than does Fourth in Amendment cases from, involving of, or private Bullock, searches seizures property. 272 384, 901 75; (1977), Mont. at Sawyer P.2d see also State v. 174 Mont. 515, 1131,
512, 1133, 571 part grounds by P.2d overruled on other 67, 71, Long (1985), 153, 155, State v. 216 Mont. 700 P.2d Accordingly, dowe not “march lock-step” Supreme applications totahty-of-the-circumstances
Court’s approach. See (1986), 503, 512, 1248, 1254, State v. Johnson 221 Mont. 719 P.2d in part grounds Buck, 81, 48, overruled on other v. MT by State 2006 ¶ 517, 48, 134 53, 48; Bullock, 331 Mont. P.3d 272 Mont. at ¶ ¶ Rather,
P.2d at 75. approach of that in Montana necessarily rigorous involves more reviewing standard for Although explicitly search warrant. we have not defined (relative standard),
this standard to the clear federal it is from the set forth above principles totahty-of-the-circumstances II, under approach greater Article Sections 10 and incorporates privacy deference to individual interests than does its counterpart under the Fourth Amendment. deference, turn, greater This balancing influences the concept
interests that As represents. explained above, “probable concededly a compromise cause” reflects between two yet opposing, often important, interests: individual’s interest privacy community’s investigation interest crime analysis II, typically Search in Montana is conducted Article Sections 10 under Constitution, the Montana to the addition Fourth Amendment to the Tackitt, State United States Constitution. 2003 MT ¶ ¶ (1997), 41, 45, 950 722, 724); (citing P.3d v. Mont. P.2d State v. Scheetz Mont. 250, 264-65, Siegal part overruled on other 19, 970 grounds by 287, 19, 291 Kuneff, 1998 MT
248 yield to the point
law enforcement. The which former must totality-of-the- assessing latter is the crucial distinction between II, 11, 10 circumstances under Article versus the Fourth Sections Amendment, point Amendment. Under the Fourth that is reached probability,” where there is a “fair based all of the circumstances set a in of crime will be application, forth contraband evidence Gates, 238,103 S.Ct. at place
found in the to be searched. 462 U.S.
2332. totality-of-the- In adopting the Gates formulation of approach, adopted probability” we “fair
circumstances also Gates’s (1984), 386, 394-95, standard, 208 679 P.2d see State v. O’Neill Mont. 430, 435,
760, 764-65; (1984), 650, P.2d State v. Pierre 208 Mont. 678 653, in totality-of-the- have continued to cite this standard our and we (1989), 218, circumstances see v. 236 Mont. analyses, State Walston (1995), 176, 221, 768 1387, 1389; 270 P.2d State v. Sarbaum Mont. (1995),
184-85, 890 1284, 1289-90; 404, 411, 272 P.2d State v.Kaluza 107, 112; Marks, 255, 17, 19, MT 901 P.2d State v. 2002 312 Mont. ¶¶ 17, 19, 17, 19; MT Meyer, 59 P.3d ¶¶ However, given 323 Mont. II, right privacy Article a than does provides Section for broader Amendment, heightened implicit level in persuasion the Fourth of words, In probability” of “fair other applications our standard. give privacy3 way will to the right
before the fundamental individual activity, investigation of criminal the factual assertions set interest stringently must be more buttressed forth the warrant I-C) (in than Fourth the manner below in Part explained reviewing judicial officer has a requires, Amendment such that the independent contraband or evidence of crime concrete and sense that to be will be found in searched. place Knowledge, Veracity, Reliability, C. Basis The Role of Totality-of-the- Independent Corroboration Approach Circumstances Texas, Aguilar v. Significantly, “two-pronged test” set forth States, Spinelli supra, was later United
supra, refined
guides
magistrate’s
to a
determination
originally
simply
“intended
inflexible,
requirements
cause,
independent
not as
Gryczan
(1997),
right.
privacy
v. State
right
is “fundamental”
ofindividual
112, 122;
State v. Pastos
283 Mont.
P.2d
Gates,
n.6, 103 S.Ct. at
every
case.”
n.6. Aguilar, required only
[i]n we that: magistrate “the must be of some the underlying informed circumstances which the informant concluded that . . . were, they
narcotics were where he claimed and some underlying circumstances from which the officer concluded informant . . . ‘credible’ or his ” ‘reliable.’ indicates, As our language rigid we intended neither compartmentalization inquiries into an informant’s “veracity,” “reliability,” and of knowledge,” “basis nor that these inquiries exegeses tip. Rather, elaborate informant’s we *24 required only bearing that some facts particular two issues be provided magistrate. to the
Gates,
n.6,
“two-pronged reject requirement it forth set in those judicial officer, that a assessing cases an for a search (from warrant, be able to evaluate provided the information veracity, an
application) reliability, informant’s and basis of knowledge. Gates, 238-39, 462 at U.S. 103 S.Ct. at To 2332-33.
contrary, the
informant’s
Court stated that “an
‘veracity,’ ‘reliability,’
knowledge’
and ‘basis of
highly
are all
relevant
in determining the
Gates,
of
report.”
230,
value
his
462 U.S.
Accordingly, totality-of-the-circumstances itself approach incorporates this requirement:
The task issuing magistrate of the a simply practical, to make whether, given common-sense decision all the circumstances set him, forth in the affidavit before including “veracity” knowledge” persons
“basis supplying hearsay information, of of there is a probability fair that contraband or of a evidence crime particular will be a place. found in
Gates, added); 462 103 (emphasis U.S. at S.Ct. at 2332 see also (“In (1997), 35-36, v. State Adams 284 Mont. 961 determining cause probable totality under the of the circumstances test, the veracity, reliability knowledge of an informant basis of (1993), highly factors.”); v. remain relevant State Rinehart 262 Mont. (“The reliability veracity, 864 P.2d and basis of determining relevant factors in
knowledge highly ofinformants remain test.”); totality cause under the of circumstances v. (1991), 299, 302 (“Ascertaining 810 P.2d Crowder important aspects veracity knowledge of informants’ are bases test.”); ‘totality of the circumstances’ State Seaman (“Under totality of test, veracity, reliability, knowledge of circumstances and basis highly determining probable informants remains relevant informants.”).4 reports from the of such Thus, “reliability” or his “veracity” an informant’s “basis of status”; longer rather, deficiency “a
knowledge” “independent no have for, determining reliability in one the overall may compensated showing other, as some other indicia tip, by strong of a a 233, 103 Gates, 462 U.S. at S.Ct. at 2329. reliability.” If, informant known for the unusual example, particular certain of criminal activities reliability predictions types his failure, case, locality, thoroughly set particular his in a as knowledge surely his should not serve forth the basis of finding tip. cause based on his bar to a absolute Likewise, with unquestionably if an honest citizen comes forward activity-which subj if would ect him report of criminal fabricated rigorous scrutiny of the basis liability-we to criminal have found if unnecessary. Conversely, even we entertain knowledge of his motives, explicit and detailed
some doubt to an informant’s his alleged wrongdoing, along statement description firsthand, weight tip greater his the event was observed entitles might otherwise be the case. than
Gates, 233-34, (emphases added, S.Ct. at 2329-30 462 U.S. *25 omitted).
citations footnote Furthermore, and basis of veracity addition to the informant’s in may be demonstrated reliability the of his information knowledge, Indeed, that the Court noted its through independent corroboration. totality-of-the-circumstances “have approach applying decisions the totality-of-the-circumstances approach in as set forth Gates the The Court recites (indeed, Conspicuously from the from its recitation ¶See 29. absent almost verbatim. portion foregoing passage however, emphasized Opinion), the of the entire is ‘veracity’ issuing magistrate Gates-i.e., requirement that the consider “the by hearsay knowledge’ persons supplying This omission of of information.” “basis totality-of-the-circumstances with its new diluted version Court approach, consistent requirement the search apparently with a cannot be burdened which reliability actually his informants and their applicant warrant information. substantiate consistently the value corroboration of details of an recognized Gates, by independent work.” 462 U.S. at tip police informant’s Independent may at 2334. even resurrect a tip
103 S.Ct. corroboration any weight totality-of-the- be in that otherwise could not afforded n.12, 103 Gates, See U.S. at analysis. circumstances 242-43 & S.Ct. (discussing & police
at 2334 n.12 corroborative efforts of officers in 329). 307, 79 Thus, v. United Draper States 358 U.S. S.Ct. while anonymous department was, letter sent to the Gates5 police standing alone, insufficient to establish cause to believe that home, Gates, contraband would found in the car and be Gateses’ independent investigation
U.S.
103 S.Ct. at
by
police-which
suggested
conducted
itself
that the Gateses were
Gates,
in drug trafficking,
involved
requirement that an informant’s tip accompanied be some indicia reliability (e.g., bearing veracity facts on the informant’s and basis knowledge, and/or details independent investigative efforts); rather, corroborative it was the manner in a magistrate which longer assesses No tip. magistrate does the conduct “an excessively technical dissection of informants’ tips, undue attention . . . on focused isolated sensibly issues that cannot be Gates, divorced from the facts presented.” 234-35, other 462 U.S. at (footnote omitted). Instead, magistrate 103 S.Ct. carries 5 May Illinois, 3,1978, Bloomingdale, Department On Police received mail anonymous handwritten letter which read as follows: you you couple your strictly This letter is inform have town who selling living drugs. They Gates, they make their are on Sue and Lance live on Greenway, Bloomingdale buys off Rd. in the condominiums. of their Most are Florida, done Florida. Sue his wife drives car to she their where leaves it to be up drugs, flys flys loaded with then Lance Sue down drives it back. back after drops May driving again she will back the car off in Florida. 3 she down there and Lance flying days in few it back. At the Lance down drive time drives the car $100,000.00 drugs. Presently they he has the trunk loaded with over have $100,000.00 drugs over worth in their basement. They brag they work, about the fact have to make their never entire living pushers. guarantee you carefully you big They I if watch them will make a catch. are drugs dealers, big friends with some visit their who house often. Lance & Susan Gates Greenway in Condominiums (internal omitted). Gates, 225,103 quotation 462 U.S. at S.Ct. at 2325 marks *26 252 weights
out “a balanced assessment the relative all various (and reliability unreliability) attending tip.” indicia of informant’s added). Gates, 234, 2330 (emphasis 462 U.S. 103 S.Ct. at Adams, previously recognized in This distinction—one which we Crowder, Rinehart, Seaman, but which has eluded the Court totality-of-the- proper understanding crucial to a case-is approach. circumstances can[not] made out which are
[P]robable cause affidavits stating or an purely conclusory, only affiant’s informer’s belief detailing any cause exists without of the probable which that belief is “underlying upon circumstances” based. underlying
Recital of some ofthe circumstances the affidavit is magistrate perform if the detached function and essential is his stamp police. not as a for the merely serve rubber 102, 741, (1965), 108-09, S.Ct.
United v. Ventresca 380 U.S. 85 States (citation (1979), 151, omitted); Mont. 746 see also State v. Olson 180 (“[T]he 663, magistrate finding upon must base his 665 magistrate to form his own competent evidence sufficient enable (first independent emphasis original, emphasis second conclusion.” added)). Thus, it is sufficient that the information set forth in a not would, true, establish cause. probable warrant taken if is it that the contains number of similar or Nor sufficient reliability identical informants whose is multiple assertions Valley (1992), 493, 830 v. 252 Mont. P.2d unknown. See State (“In is not number of determining it probability, statements, or determinative relative to the common tips events one, it force of some or all of them. probative sense is the approach, strengthened by is not Insufficient data establish cause repetition.”). number or applicant To must contrary, search warrant v. application, “four State
demonstrate-within the corners” 83, 24; 243, 24, 408, 24, 10 ¶ MT P.3d ¶ P.2d 423-that 196 Mont. Isom trustworthy,” Brinegar, “reasonably therein information contained omitted). (internal quotation at 1311 marks 338 U.S. at S.Ct. words, reviewing he set facts from which the
In other
must
forth
reliability ofthe
assertions
judicial
can assess the
various
officer
required by
mindful
heightened
persuasion
level of
application,
2004 MT
II,
Griffin,
Article
Sections 10 and
See
(“
affirmance ofbelief
143, 23, 102
P.3d
23 ‘Amere
facts
officer,
any underlying
or
suspicion by a
absent
police
circumstances,
does not establish
the issuance
State v. Lott (1995),
424)). guess why judicial officer should be left as to
applicant cited person considers in the her bearing veracity information to be reliable. There must be facts on the knowledge steps person, any and/or basis of of this or details of taken by Otherwise, judicial the her applicant corroborate information. the tip; best, officer is unable to credit her is of little her information weight probable cause overall assessment.
D. and Establishing Reliability Reesman the of Informants’ Information extent, To a large probable cause determinations are subjective-as
¶98 epitomized by approach Hence, the by utilized the Court in this case. the Supreme
consistent with Court’s purpose Aguilar, this Court years adopted variety guide over the has of probable rules cause and the reliability determinations assessment of the of information provided by requirement informants-mindful that more persuasive quantum provided reviewing judicial facts must be to the heightened totality-of-the-circumstances officer under the standard II, by years mandated Article ago, noting Sections and 11. Six convolution,”
this case law had “as a appearance create[d] whole Reesman, pulled we together place precedent one extant
unambiguously step-by-step assessing articulated a for under process totahty-of-the-circumstances approach probative value of different types of information set forth in search warrant applications, Reesman, see 24-48. Importantly, Reesman did not establish new Nor did it law.
impose any obligations police, Rather, prosecutors, judges. new or opinion merely adopted collected the rules that this Court had presented might numerous search and seizure cases and them in what reason, majority’s be described as “cookbook For this fashion.” lip implicates only mere to the service Reesman framework decision, jurisprudence
one but also the extensive before developed (and after) Reesman. Furthermore, days nothing signifies inReesman a return to rules,” notwithstanding or “strict multi-pronged
of inflexible tests totality-of-the- with the inability “easily Court’s reconcile” Reesman contrary, approach, specifically circumstances 41. To the we ‘totality by acknowledged approach’ “[the] of the circumstances design ‘any rigid specific every demand that tests be satisfied resists ” Reesman, however, time, At the tip.’ informant’s 27. same we that, years precedent laid down this Court observed “based on .., certain indelible threshold rules adopted since we the Gates test. turn, may merged In into a emerged. fairly
have these rules be analysis determining whether an informant’s step-by-step coherent Reesman, cause.” information is sufficient to establish 27. Accordingly, Reesman both a reaffirmation represents
totality-of-the-circumstances every Member approach-an approach agrees assessing method for whether presently proper Court recognition warrant-and our probable cause exists to issue bearing veracity and basis of that sufficient facts on an informant’s reviewing officer so that he knowledge provided judicial must informed or she is able make a conscientious II, heightened required by Article
determination under the standard end, case law the synthesized 10 and To this we our Sections following principles. anonymous, independent If then informant required. of his her information is &¶
corroboration 211-12, (citing n.l State Rinehart *28 489, 1219, 1223-24; (1992), 493, Valley v. 252 Mont. State Worrall, 1257; State MT 293 Mont. v. 1999 (1997), 968, 22; 943 v. Adams P.2d P.2d 955, 962). necessarily say This is that a warrant fails if probable to establish cause it contains uncorroborated information Rather, is, essence, it provided by anonymous an informant. little, if any, entitled
statement of the obvious: such information is determination, reviewing judicial since a weight probable cause of the basis for officer cannot make “a conscientious assessment Gates, 238, 103 at S.Ct. at when tip],” [a such 462 U.S. crediting reliability no indicia of whatsoever attend it. Indeed, say had this to about the Supreme the Court police in Gates:
anonymous department letter sent to the we are inclined to Supreme The Illinois Court concluded-and anonymous agree-that, standing alone, letter . . . would not the there magistrate’s determination that was provide the basis for a be found the probable cause to believe contraband would nothing provides virtually car home. The letter Gateses’ honest or his might conclude that its author is either which one absolutely no reliable; likewise, gives the letter regarding predictions for indication the basis the writer’s then, Something required, more Gateses’ criminal activities.
before a could conclude that there was cause magistrate probable be found in the home to believe that contraband would Gateses’ and car.
Gates, earlier, 103 S.Ct. 2326. As U.S. at at discussed ultimately investigating concluded that because of Court letter, corroborating efforts in the details set forth detective’s magistrate on the reasonably rely could letter in Gates, 243-45, See cause determination. 462 U.S. 103 S.Ct. at explained honesty reliability 2335-36. Court that while anonymous police informant were indeed unknown to the at the they letter, time received the this fact “became far less after significant independent Gates, investigative [the detective’s] work occurred.” 244, 103 at 2335.
U.S.
S.Ct.
2. If the
is not anonymous,
informant
is his or her information
personal
based on his or
her
observation
the described criminal
(as
activity
not,
If
opposed
hearsay)?
independent
then
corroboration of the informant’s information is required.
Rinehart,
1224;
29-30 (citing
Kaluza
272 Mont.
P.2d
State Wilson
317, 319, 837
1346, 1347).
Again, nothing
about
this second
inquiry
“impractical.”
merely
novel or
It is
another
statement of the
there
or no
for crediting
obvious:
is little
basis
hearsay provided by a non-anonymous
informant
no other
when
reliability-such
indicia of
as
veracity
the informant’s
officer’s
independent
tip.
But
if
corroboration-attend
the informant’s
veracity is
application (e.g., through independent
established
prior dealings),
may
corroboration or
then his or her information
See,
Gates,
233, 103
e.g.,
(“If,
credited.
462 U.S. at
S.Ct. at 2329-30
example, a
known
particular
reliability
informant
for the unusual
predictions
his
types
locality,
of certain
of criminal activities in
his
failure,
case,
particular
thoroughly
in a
set
basis
forth the
of his
knowledge
surely
finding
should not serve
absolute bar to a
on his
tip.”).
based
3. If
anonymous
the informant
is not
and if his or her
*29
gleaned
observations,
information was
he or she
personal
is
a
not,
such
If
independent
rehable
source of
information?
then
Reesman,
required.
corroboration of the informant’s information is
Kaluza,
410,
111; Rinehart,
(citing
31-35
740; Valley, Mont. at at ¶¶ Oleson, 130, 14, 289 1998 MT ¶ ¶ 14). ¶ inquiry, As identified three part of third we scenarios is, independent (i.e., is informant required
which corroboration not information): (a) essentially, presumed be a reliable source where is a “confidential informant” who has “provided the informant reliable Reesman, 32; past,” and accurate information to officers in the ¶ (b) against informant unequivocal makes an admission where “the (c) interest,” Reesman, 33; and where “the informant was motivated a
by ‘good citizenship’ provided and the information demonstrates of the nature of the circumstances under which the degree sufficient known,”Reesman, (Obviously, incriminating information became no a one of three treating person types there is basis for as these application. facts set forth in the supporting informants when no are Nevertheless, blindly labeling Court such at accepts case hand, 31, 32, 34, 37, 38, 41, thereby signaling see that we now accept the “concerned citizen” and “citizen informant” without labels question.) However, independent required corroboration is stating
107¶ categories, fall three for information that does not within one these reliability Reesman, we did not mean that other indicia of see reliability. deficiency for the in the informant’s compensate could Rather, simply acknowledging personal we observations were informant of unknown relayed non-anonymous an officer no other reliability relatively weight are entitled less when indicia tip. See, corroboration-attend reliability-such independent (“[E]ven Gates, 234, 103 S.Ct. if we entertain e.g., 462 U.S. motives, explicit his detailed
some doubt as to informant’s description alleged wrongdoing, along with statement firsthand, greater weight tip his than event was observed entitles case.”). might otherwise be rigid, multi-pronged test or Thus, Reesman not create a did contrary, rules,” notwithstanding. To Opinion
“strict the Court’s above, cookbook, indicating is, essentially the decision as described given informant’s to law enforcement whether
sufficient, investigation, corroboration independent without informant 27. If the establish cause. See given tip can his or her any-weight absent anonymous, little-if non-anonymous The same is true of corroboration. independent knowledge are not established veracity or basis of informants whose
257 only is mandated not under in the warrant This conclusion application. Amendment, Gates, Fourth see by minimal standard set forth the higher by U.S. at S.Ct. at also standard 103 but II, Bullock, 383-84, by Section 272 Mont.
mandated
Article
see
P.2d at 75.
sure,
veracity
finding
To be
that an informant
lacks
or that
¶109
knowledge
wanting
his or her basis of
is unknown or
is not fatal to
(whether
cause,
reliability
establishing probable
since other indicia of
whole)
to
to the
as a
particular
application
related
informant or
may supply
necessary
finding
Gates,
cause.
probable
basis for a
minimum,
U.S. at
“[sufficient
sufficient to form independent enable his own conclusion”) (first added). emphasis in original, emphasis second that, With I now turn application. to the actual search warrant Analysis
II. Application Search Warrant Issue Background A. On February Flathead Police Tribal Narcotics (“Fiddler”)
Investigator Louis Fiddler presented Judge J. District Application McNeil with a sworn Search Warrant search “the residence, outbuildings, junk and numerous vehicles” located on Barnaby. property by alleged owned Fiddler that evidence of the possession dangerous crimes of criminal drugs and criminal production or of dangerous drugs manufacture would be found at this location. support application, In hisof Fiddler set forth fourteen factual
assertions, all regarded but three of which the activities of June (“Sheridan”). assertions, Malatare-Sheridan Judge Based on these McNeil concluded that “there is cause to believe evidence residence, outbuildings, of a crime is located in the junk and numerous Barnaby’s property. Accordingly, February 11,2002, vehicles” on he car],” [and issued warrant “to said premises Sheridan’s which Thereafter, February Barnaby Fiddler executed on charged operation
Sheridan were both with of an unlawful clandestine 45-9-132(1), laboratory, in violation of MCA. § May 23, motion, Barnaby On which Sheridan filed joined, on the suppress ground
later evidence seized Fiddler “fail[ed]
that Fiddler’s establish for the Addressing of the search warrant in this case.” each assertion issuance turn, forth in the Sheridan noted that the first few set home assertions were “not relevant” to search of were, substance, “mere remaining that most of the assertions instance, conclusory lacking support.” statements factual For respect tips provided by informants who Fiddler labeled as citizen[s],” pointed Sheridan out that a concerned “concerned while presumed rehable, reliability generally “is shown citizen such very incriminating nature under which the circumstances (citing Siegal known” *31 became 250, 281, 176, 194); yet, application 934 P.2d Fiddler’s “states absolutely ‘incriminating facts how no circumstances or as to the Similarly, information’ by informant[s].” the citizen she became known information provided by that several other informants observed that application speculation” referenced in the was “sheer there Lastly, having crediting “no factual basis” for this information. was for recognized tips propensity that one of the “tends to show some activity part Sheridan,” the of she reminded the court that criminal on particular must for the search of the location “[plrobable cause exist [State which warrant is obtained. Pursuant Kaluza the search 107], 404, probable 901 P.2d cause to believe that an Mont. by suspect separate question has is a from offense been committed In probable particular cause exists to search a residence.” whether conclusion, statements, speculative argued conclusory she that the in the not together application, with the other information “did taken of that related to a probability establish the existence a fair evidence ” ‘Barnaby at crime would found the residence.’ State, reliability The that “the of each response, in maintained First, argued by virtue is the State that of the informants established.” (near each the application) the end of his that of of Fiddler’s assertion given reliable information application informants named has Second, necessary.” [was] further past, “[n]o corroboration reliability accorded information presumption cited the Third, two respect “concerned citizens.” provided manufacturing that Sheridan was reported informants who residence, State-conceding methamphetamine that their is known”-suggested source their information “the reported by a third informant who corroborated was Lastly, State asserted Barnaby’s residence. activity’ “unusual car [Sheridan’s] . indicated that . . “[p]olice surveillance residence],” though Bamaby’s police [at no such surveillance located four Fiddler’s application. is referenced within the corners of 12, 2003, hearing Following September Judge District
Christopher Bamaby’s suppress. denied motion to Sheridan The
B. Individual Factual Assertions Fiddler’s Application inadequacy Fiddler’s warrant
camouflaged by numerosity provocative, yet unsupported therein, strengthened set forth though assertions insufficient data repetition. properly analyze totality number and In order to his necessary it is application, probative first to assess value of the pieces regard, In occasionally individual information. we have warrant, analyzing said that in for search we do not each fact presented application, look at individual but rather at 54, totality See, e.g., Morse, of the circumstances. State v. 2006 MT 12, 528, 12; 331 Mont. Beaupre, P.3d State v. ¶ ¶ ¶ 37;
MT 323 Mont. State v. ¶ ¶ ¶ Bowman, 2004 MT P.3d Marks, a slight approach.
This is misstatement of our In State v. St. 285, 312 468, 59 2002 MT (indirectly), to which Morse Beaupre (directly), (directly) cite, explained and Bowman we assessing application,
“[w]hen a search warrant test ‘[t]he is not to presented determine whether each individual the application fact cause, for search warrant establishes but determine ” totality of the circumstances whether there is cause.’ St. (second
Marks, original) (quoting Kuneff, alteration *32 287, 27, 27, 556, 474, 27, 1998 MT Mont. 291 in turn ¶ ¶ 2332). Gates, 238, at citing words, 462 U.S. 103 S.Ct. at In other deficiency in one necessarily individual factual assertion is not fatal to finding cause, of probable since other facts presented application may deficiency. compensate say, however, This is not to that we do not look at each Obviously, totality
individual fact set forth in the application. analyzing circumstances cannot be assessed without first value probative up totality. Indeed, of the various facts that make totality-of-the-circumstances “a approach contemplates balanced weights” all the presented assessment relative facts Gates, 234, 103
application. 2330; U.S. at S.Ct. at see also State v. 462 124, 775, Gray, 2001 MT
(Under totality-of-the-circumstances judge “the approach, the application evaluates the within the four corners of asserted facts there practical, and makes a common-sense decision as whether probability incriminating place a fair items found in the will be added)). Thus, entry sought.” (emphasis which each of Fiddler’s assertions, ease fourteen factual which are numbered below for reference, to determine its relative analyzed sequentially will circumstances. weight in the totality of discussion, helpful As a for this it is to sketch the framework
general propositions apparently for which Fiddler’s assertions were offered: (cid:127) Galpin methamphetamine, Farren knows to manufacture how (Assertions 1, taught and Minez to do so Cory
and he Cl# 14 how 3). 2, and (cid:127) dated, Sheridan, also he once how to Galpin taught whom (Assertions 4). 3 and methamphetamine manufacture (cid:127) possessed apparatus and acquired ingredients Sheridan has (Assertions manufacture ofmethamphetamine consistent with the 12). and (cid:127) engaged methamphetamine Sheridan has the manufacture (Assertions 12). 6, 8, 9, 10, and (cid:127) Sheridan has resided at least Since least November (Assertions 9). part-time Barnaby’s residence 8 and (cid:127) methamphetamine lab at operated Sheridan has (Assertions and residence and at another location 13). inferences from Assertion (cid:127) 2002) ingredients are presently (February There apparatus production methamphetamine associated with the residence, junk outbuildings, in “the and numerous vehicles” 13). (inferences 9,10, and Barnaby’s property from Assertions (cid:127) persons supplied who this information are reliable 14). (Assertion their information is reliable 22, 2000, Lt. February 1 and 2. On Les Clairmont Assertions
(“Clairmont”) “CI#14,”6 who that he had been interviewed stated Galpin one Farren taught methamphetamine how to manufacture 24,2000, August February during On an interview (“Galpin”) in (“Couture”), Clairmont, Fiddler, Investigator C. Couture how to manufacture Galpin taught had him CI#14 reaffirmed that taught Cory one Minez Galpin meth. also CI#14 disclosed (“Minez”) to take Fiddler and meth. CI#14 offered how manufacture Bamaby’s Incidentally, trial that and Sheridan later disclosed at CI#14 Fiddler *33 through marriage. related one that Fiddler and Sheridan were are and the same and (which application) to the locations Fiddler listed in the where Couture labs, manufacturing storing meth and his meth Galpin had been he had observed” the meth apparently “personally
he disclosed that During interview, “spoke very freely” labs at these locations. CI#14 and he evinced extensive producing methamphetamine, about knowledge process. about the Analysis: Why reviewing judge should the believe CI#14’s information? We that a officer reviewing judicial just have held cannot credible; rather, that applicant assume an informant must provide finding-e.g., basis for such a sworn statement that
applicant specific given informant has rehable and accurate past, information in the or independent corroboration of the 29-32, 35; informant’s current information. See v. State (1995), 404, 410, 411, 107, 111; Kaluza 272 Mont. v. State (1992), 1346, 1347; Wilson 254 Mont. 837 P.2d 218, 222-23, Here,
Walston provided Fiddler no concerning veracity. facts whatsoever CI#14’s Granted, CI#14 offered take Couture and Fiddler to the locations Galpin labs, where had been manufacturing storing meth and his meth and CI#14 indicated that he had “personally observed” the labs locations; however, these are not we told whether Fiddler and/or actually so, and, Couture went to these locations they if what found there. assert, Fiddler did in what seems an afterthought to be near (Assertion 14),
the end of his application “[t]he informants application given mentioned have reliable information in the past” proven “[a]ll have with corroborating been reliable they information that resulted arrests from the information provided.” catchall, however, value, This is of dubious discussed in assuming reliable, detail below. But even CI#14’s was Galpin taught
fact that CI#14 and how to Minez manufacture absolutely bearing Barnaby’s meth had no on the search of home and Thus, property. weight his information was entitled to no analysis cause pertained as it residence.7 aside, given any concerning anAs we are the out, also facts basis of CI#14’s knowledge Galpin taught how to Minez cook meth. As it turns Fiddler’s failure unimportant,
to do so is Minez’s since Minez disclosed this fact himself Assertion 3 and since is, event, meth-cooking education to the irrelevant typical But determination. drafted. As will be seen this omission is of the manner in which this below, tips few the set forth in Fiddler’s gain are themselves; worthy any weight by they only credibility a semblance of when therefore, conjunction tips. issue, considered with other is whether a collection Assertion 3. On March Minez was arrested *34 During
production methamphetamine. an interview with Fiddler Couture, taught he how Minez disclosed that had been to taught had by Galpin Galpin meth and that also manufacture addition, In Minez that Sheridan how manufacture meth. stated Galpin “there dating. was a time” when Sheridan were Analysis: CI#14, provided by Fiddler As with information ¶123 veracity. Granted, on provided bearing no facts Minez’s Minez’s is taught that had him how to manufacture meth Galpin admission activities, criminal reliability respect indicator of with Minez’s own Reesman, see given he had arrested for meth production, been however, (discussing against interest); 33 this is not a admissions ¶ reliability of Minez’s information presume basis on which to meth-cooking her concerning relationship Sheridan’s education and (which, appears application, from what in the was Galpin activities). Galpin had How did Minez know that unrelated Minez’s did know that taught Sheridan how to manufacture meth? How he are Galpin Sheridan had dated? There no facts by Nor there
indicating how Minez came this information. are information Minez’s reliable. indicating why facts Fiddler found to be (Again, afterthought in Assertion 14 will be discussed in the catchall below.) Thus, information was entitled to little more detail Minez’s weight analysis. cause July 2000, by Assertion In Couture was contacted 4. knowledge on hand reported, citizen” based “first
“concerned who dating observations,” Galpin that Sheridan had been and that personal meth. Galpin taught to manufacture Fiddler notes Sheridan how currently serving an sentence after “Galpin here extensive production Methamphetamine.” having been convicted Analysis: Here, to be a presented appears we are with what information, providing non-anonymous informant firsthand as informant’s status a “concerned reliability of which is based distinguished reports “the concerned citizen who We have citizen.” duty” crime a civic from “the confidential encounter with chance illegal activities police by reporting on informant who works with 34, 67 Martinez, 65, 34, 314 434, State v. MT Mont. ¶ ¶ of others.” informant who was 207, 34. have also stated that an P.3d We ¶ ” incriminating disclose by ‘good citizenship’ “motivated veracity up tips add unsupported ofunknown can from informants person’s to search a home. reliable, Reesman, see whereas informants other presumed ¶ veracity, Reesman, 32. presumption no such see enjoy ¶ However, a person order to ascertain whether thus, by “good citizenship”-and, may be deemed a
motivated under “concerned citizen”-the nature of the circumstances which she by incriminating information must be set forth in the came 413, 43, Beaupre, State 2004 MT Mont. application. v. ¶ ¶ 43; Olson, MT 102 P.3d ¶ 34; 27; Reesman, Valley (1992), words, simply In other labeling citizen” determine true nature person “concerned does not person type scrutiny imposed or the that must be on her and reviewing
her information
See
court.
Here,
only
may
indicator that this informant
have been
by good citizenship
assigned
motivated
is the “concerned citizen” label
Yet,
divulged
to him/her
Fiddler.
Fiddler
no factual basis for his
labeling
such,
this person as
and the
under which
circumstances
*35
person
suggests
came
his/her information
that he/she
not a
was
Specifically,
highly suspect
“concerned citizen” at all.
it is
that
this
knowledge
informant had such intimate
meth-cooking
Sheridan’s
and
personal relationship
education
her
with
One
Galpin.
help
cannot
but
“a chance
question
really
whether
encounter with crime”
was the
knowledge
source of his/her
hand
and personal
“first
observations.”
ambiguity
Fiddler created further
as to the status of this
through
informant
his
use of
arbitrary
throughout
labels
his
instance,
application.
assigned
For
he
citizen”
“concerned
label to
4, 9,
the informants
in
referenced Assertions
and
but in Assertion
13, he used the label “concerned
interchangeably
citizen”
with the label
informant,”
assigned
“citizen
and he
this latter term the
informants
course,
referenced in
6 and
possible
Assertions
10. Of
it is
that Fiddler
intended both “concerned citizen” and “citizen
informant” mean a
person
by good citizenship
who was
incriminating
motivated
to disclose
gleaned
Indeed,
information
from chance encounter with crime.
we
used the
“citizen
a person,
have
term
informant”
refer to such
see
Valley,
proceeds
for either catchall in that “concerned citizen” or informant” are persons labeled as “citizen neither. in Specifically, “[t]he Fiddler states Assertion 14
informants have given mentioned this reliable proven have reliable with past” “[a]ll information been from the corroborating information resulted arrests they It clear informants provided.” “[t]he is not whether encompasses the “concerned citizens” application” mentioned in 13; and “citizen informants” referenced Assertions does, it likely, light if it then seems all the more of what Fiddler but persons were informants states in Assertion these “who others,” police by reporting illegal work[ed] with on activities of as a reported] encounters] citizens .. . chance with crime civic “who Martinez, event, duty,” 34. In a determination judicial indulgence officer’s reviewing
cannot rest assumptions concerning accuracy applicant’s search warrant used labeling-particularly implicates presumption where the label reliability. Thus, “concerned given ambiguous Fiddler’s use of label citizen,” magistrate glaring lack of facts from which a as well (and cited in could conclude that the informant Assertion matter) 6, 9, 10, cited in for that informants Assertions to disclose information he/she by good citizenship” indeed “motivated crime,” crediting this had learned from “a chance encounter with unwarranted, absent wholly information as reliable would person’s Indeed, it a mere ratification of reliability. other indicia of would be labeling, something Fiddler’s neither the Fourth unsubstantiated II, nor Sections 10 and tolerates. Amendment Article May Sheridan was detained for Assertion 5. On During Target in Missoula.
shoplifting suphedrine tablets at store City of the Missoula Police investigation, his Officer Brester Morris, spoke employee explained Micah who Department he detained Sheridan and stated that circumstances under which on other suspected stealing suphedrine tablets he Sheridan Brester, Sheridan, by Officer *36 response questioning in occasions. date tablets on this removing suphedrine
admitted to five boxes of Target on other suphedrine additional boxes of tablets taking occasions. Analysis: interest, tip this against Sheridan’s admission Given 33.
is reliable. See a “citizen July 18, spoke Fiddler with On Assertion informant with Sheridan. The informant” who had been “involved” labeled “June’s Stuff’ property he on his a box disclosed that had found acetone, toluene, that inside this box he had found lye, red devil (all filters, coffee plates which, notes, several hot of Fiddler “are production Methamphetamine”). consistent with the The informant reported also period of time that Sheridan had lived on his property, he had found “that paint [his] the white inside closet had gotten slight brown tint to it carpet and that the in one of the corners (Fiddler was stained.” notes here that it is “common in production (iodine).”) of Methamphetamine to stain materials brown Finally, the informant told having Fiddler that he recalled empty suphedrine found boxes in Sheridan’s vehicle and that he suspected that Sheridan “is concealing items produce used to Methamphetamine in her vehicle’s trunk” since “she would never let him where close to the vehicle’s trunk.” From what the informant “had heard production about the Methamphetamine he [Sheridan] believed that had been involved with production drug.” Analysis: person Whether this supposed to be a “concerned citizen” or a “confidential important distinction, informant”-an just discussed, reliability may since presumed with the former but not with latter-is not Notably, clear. this person had been “involved” Sheridan-how, told, with we are not except that Sheridan once lived on his property-suggesting that his information was derived from just more than “a chance crime,” Martinez, encounter with
Moreover, Sheridan apparently damaged the informant’s property, and the nature of their relationship aloof, sounds somewhat if not antagonistic, all of which suggests that the informant’s motives were questionable-a possibility Fiddler does not application. address his assuming But even informant was acting as a “concerned (as citizen” spoke him, when Fiddler the factual opposed to the suspicions) imparted-namely, he point that at some time, Sheridan property; time, lived on his that during period his closet was discolored in a manner consistent presence with the iodine; and point that at some after Sheridan lived on his property, he found a box labeled “June’s Stuff’ in which he found items consistent production-if true, with meth only taken as establishes that at some time, point Sheridan possessed ingredients and apparatus consistent with the manufacture methamphetamine. This probative information is of little in establishing probable value
to search house. And as for the informant’s uncorroborated conjecture-based on “what he had production heard about Methamphetamine”-that Sheridan at some point time was “involved *37 of the this is of even less value in production drug,”
with the establishing probable cause residence. Assertion 7. On October while at the Ace Hardware
¶136 Ronan, Jody Force Drug Agent store in Northwest Task Durham (“Durham”) (a “a cans of toluol purchasing observed female” two notes, common chemical, that found in the Fiddler is a solvent odd, production of Durham that this was methamphetamine). believed force, along reported and thus he it to the other members of the task driving. plate the vehicle the female Durham later identified with was (in photograph) purchased as the female who had Sheridan toluol. Analysis: investigation Durham and Fiddler of Given ¶137 observation, tip reliable. See 43-45. Durham’s is Tribal Police Assertion 8. On November Flathead ¶138 Fyant (“Fyant”) Brian Fiddler that Sheridan resides Officer advised home, kept part parents’ eye the time at her that Sheridan had approximately home while her were out of town for two parents on the weeks, parents problems ill sinus Sheridan’s became with here shortly returning after home. Fiddler notes that “it is common for they have problems to suffer from similar sinus when been people production Methamphetamine exposed to the or have been exposed actually place.” took production Methamphetamine where the Analysis: Fyant’s information, insinuates Based on Fiddler parents’ during her house their that Sheridan manufactured meth in however, told, Fyant are not and how two-week absence. We when personal it his Is by his information. Is based on observations? came (or matter) Fiddler, actually speak it Did with talk? he for that bar even current? parents? Sheridan’s Is the information Moreover, reasoning leaves much to be desired. Fiddler’s conceivably ill just with sinus parents
Sheridan’s could have as become Or, bug during trip. long as problems they caught because flu their mistook the speculating, perhaps Fyant parents’ symptoms we are them) hay Maybe parents actually he fever. (assuming observed city high pollen count. Unless we are just returned from a with a afflictions proximity most willing presume sinus result labs, wholly unconvincing. As with much Fyant’s is meth reviewing apparently would have application, Fiddler of his any supporting ratify without judicial simply hypothesis officer his investigation part his facts or whatsoever. was contacted Assertion November Fiddler 9. On living reported that “Sheridan “concerned citizen” who ”
‘Barnaby’ at “the Bamaby ‘dirty residence on corner’ near Cold Water (This Lane.” is the first mention Barnaby the warrant application.) person This also reported “they believed” that Sheridan “operating a Methamphetamine Bamaby lab at the residence and at a residence in the Dixon area.” Analysis: It clear from Fiddler’s use pronoun “they” referring whether he is to more than one point informant. That aside, what are some of underlying circumstances from which the *38 informant(s) reached the conclusion that Sheridan was operating a meth lab at residence? And what are underlying some of the informant(s) circumstances from which Fiddler concluded that the was (were) credible or that his/her/their information was reliable? Fiddler required provide was bearing some facts on these two issues. He did not. Indeed, the only
¶143 information bearing on the credibility of the informant(s) is the “concerned citizen” label assigned by Fiddler; however, we have no basis on which to judge whether this characterization is Again, accurate. simply labeling person a a “concerned citizen” does determine the trae nature of that person type or the of scrutiny that imposed must be on her and her by information the reviewing judicial officer. State v. Beaupre, 300, 43, MT 413, 43, 102 323 Mont. Olson, 43; ¶ ¶ ¶ 2003 MT 27; 314 Mont. 66 P.3d 34; Valley (these It help would if explained Fiddler had how this informant’s informants’) “chance encounter with crime” led him/her/them to a belief that a meth operation lab was in at Barnaby’s is, residence. As it (these however, suspicion imparted by this person persons) most warranted investigation; further it was not significant entitled to weight in the analysis. 28,2001, Assertion 10. On November Fiddler by was contacted
a “citizen informant” reported who that Sheridan operating “was Methamphetamine Barnaby lab at the ‘dirty-corner’, residence near and possibly at another Ignatius residence near the St. area.” Analysis: As with the “citizen informant” referenced
Assertion we do not know person whether this was a “concerned citizen” or a “confidential informant.” But assinning, even for the sake argument, by good he/she was motivated citizenship, nothing discloses the circumstances under which he/she Indeed, came his/her information. imagine we are left to a “chance encounter with crime” from gleaned which this “citizen informant” Barnaby was at the operating
Sheridan meth lab residence and person this possibly Perhaps utility another residence. was employee just operation meth company happened who observe the lawfully Or, premises. maybe on the he/she was someone who while purchase drugs subsequently there to decided to become an was discloses, As this person informant. far as the is same in Assertion 9 information person reporting referenced same reported days he/she had to Fiddler fourteen earlier. point tip that a gain credibility simply does not because up can dream reasonable scenarios in which “citizen informant”
we
information.
facts supporting
came
his/her
Those facts-and
implicit
Fiddler’s
conclusion that
the informant
and his/her
were reliable-should
have been set
forth
was, however,
way
reviewing judge
As
had “no
application.
it
rumor,
vendetta,
ascertaining
tip
speculation,
whether
contrary
or
It is
to common sense that this information
reprisal,
gossip.
a basis for
cause to search a citizen’s home and invade his
Valley,
privacy.” January 15, 2002, Agent Assertions 11 and On Couture Family Pharmacy” made contact with “a female Health see anyone buying “large or amounts” of if there been odd ephedrine The female identified pseudoephedrine products. photo lineup in a who “comes in at least once person
Sheridan (Fiddler here that purchases ephedrine products.” *39 ephedrine one need some produce Methamphetamine type would “usually The has a little female also stated that Sheridan product.”) long with her with blonde hair when she comes in.” girl January Agent Family On Durham returned to the daughter, of Sheridan’s whom the Pharmacy photograph
Health she girl identified as the little seen with Sheridan when pharmacist products. pharmacist also told Durham purchasing ephedrine was activity involving ephedrine suspected she Sheridan illicit “that including: physical purchases due to certain indicators product eyes, acting very of skin under Sheridan’s Sheridan appearance always pays receipt.” and never ‘jittery’, requests Sheridan in cash Analysis: by provided to the information In stark contrast and “citizen informants” unidentified “concerned citizens” various imparted Fiddler’s the information throughout application, mentioned reliable, given here seems by pharmacist the female and the they by came that information under which detailed circumstances pharmacy into the least (observing daughter Sheridan and her come purchase ephedrine once a week to products), pharmacist’s detailed behavior, observations of appearance Sheridan’s unusual and and the (the investigation/corroboration by conducted Couture and Durham photo lineup photograph sure, of Sheridan’s daughter).8 To be magistrate is left to speculate as to the amount of pseudoephedrine (Fiddler and ephedrine that Sheridan purchased does not disclose the meaning “large amounts”); or odd but the fact that she went into the pharmacy buy ephedrine products relatively often is established. factors,
Given these tips these were entitled weight to substantial analysis. Assertion January 17, 2002, 13. Also on Fiddler made contact (also with a “concerned citizen” referred to Fiddler as a “citizen “citizen”), informant” and a who “personally viewed” some “odd Barnaby’s events” at residence. Specifically, the informant reported the following: that he knew Sheridan and the vehicle that belonged her; that Sheridan’s vehicle “spends a lot of Barnaby residence”; time at the that he “has even seen pull someone the vehicle into Barnaby drive, back all way door, of the up to the and begin un-loading stuff from the vehicle”; trunk of the Sheridan that Sheridan’s vehicle “has been spending a lot of time at the Barnaby past residence in the two months”; time, that since that “things have been strange”; that “a make shift barrier has been built out of tarps blue plastic black (a between the blue home yellow and the home” reference to the two homes located on property) “so person that a could not see them un-loading items from the Sheridan vehicle or see the movement home”; home to that “before Sheridan’s arrival to the Barnaby home there going only fire every often, so like once or twice a (cultural year, out side the home house),” fire- sweat but that “in the past two months a burning fire is out side the home constantly”; almost that “during times strange when there is activity, there is a fire burning outside”; and that there is “a lot of traffic to and from the Barnaby residence at all day hours of the night, and only staying for a short amount of time.” (Assertion another) This is one of being the few instances in the
which the explicitly police information set forth Fiddler associated with investigation or corroboration. Couture and Durham initiated their contacts with the pharmacist, they up female and the followed with a second visit to confirm the (Sheridan) identity person purchasing ephedrine products who had been at the *40 pharmacy. By contrast, by persons Fiddler and/or Couture were contacted 4, 9, 10; 6, 8, ambiguous referenced in Assertions point; Assertions and 13 are on this any and there is no indication that Fiddler corroborated of the information provided by these informants. Analysis: tip important This arguably the most entire Yet, application. underlying Fiddler did not disclose the circumstances person’s this from which he concluded that information was reliable. application no independent references corroboration Indeed, know,
investigation his as far as part on whatsoever. we by time person activities described this all ceased Fiddler nearly four later on submitted his search warrant weeks February 11, 2002.9 Furthermore, respect as discussed with above 4, 6, 9, do not
informants referenced Assertions we know informant a “concerned whether Fiddler’s characterizations this as accurate, did citizen” “citizen informant” are since Fiddler not (He only bearing facts this issue. stated that he had disclose on personally “made contact with a concerned citizen” who “had viewed residence.”) As happening [Barnaby] some odd events at the noted (see 128), possible it is intended “concerned above Fiddler both who motivated person citizen” “citizen informant” to mean a was from by good citizenship incriminating gleaned disclose hand, may with On other this be a a chance encounter crime. reporting illegal who worked with Fiddler activities
person know, provided Sheridan. we do since Fiddler no factual Again, But assuming the labels he used. even support by good citizenship, Fiddler’s reliance on this informant was motivated example trying is a to establish tip prime this officer’s hunches, suspicions,
cause on the and innuendo derived basis conduct, opposed innocent to evidence actual criminal otherwise activity when activity suspicious or innocent associated activity, 2001 MT alleged Griggs, criminal see State ¶¶ ¶¶ unloading “stuff’ First, seeing the citizen “someone” reported just this on one occasion? from the trunk of Sheridan’s vehicle. Was being It could did it occur? And what was the “stuff’ unloaded? When “stuff’; “stuff’; it been illicit it perfectly legal have been could have is, As it because Fiddler did could have been “stuff’ to cook meth. even knew) (if being sort “stuff’ was unloaded not disclose he even what vehicle, reviewing judge speculate was forced to from Sheridan’s Barnaby’s out, in late As it Fiddler did surveillance on residence turns conduct gathered during However, early he none of the information this 2001 and/or period application. When asked the four of his search warrant was listed within corners omission, explained he feel it Fiddler “didn’t trial about at evidence.” *41 object that the “stuff’ was the proper Barnaby’s of a search of home. ought
We not to applications sanction search warrant seeking to search for and seize person’s “stuff’ from a home-particularly when it appears, here, as that purpose seizing for such “stuff’ is to ascertain, instance, in the first whether it is contraband or evidence of a crime. The citizen also reported things
¶154 that “strange” have been at the Bamaby past instance, residence over the two months. For he observed that a makeshift barrier had been constmcted out of blue tarps and plastic black between the yellow blue home and the home. The citizen opined that Sheridan Barnaby and built the barrier “so that a person could not see them un-loading items from the Sheridan vehicle or see the movement from home to Curiously, home.” notwithstanding this barrier, the informant somehow knew what was going on behind it: the ’ unloading of “stuff from Sheridan’s vehicle and movement from home
to home. Or did the informant simply assume that the barrier had been erected purpose for the hiding illicit knew, activities? For all he Bamaby Sheridan and erected this barrier purpose for the preventing alongside snowdrifts the houses. Or perhaps they erected gain barrier to privacy some nosy neighbors. from Whatever their reason, point here is that the reviewing judge expected was simply infer activity criminal Barnaby residence from otherwise innocuous conduct. Notably, Fiddler acknowledged at Barnaby’s trial that he
“never said [putting tarps up] Rather, was unusual.” “[t]hat was something that the informant why said. That’s it’s listed on the search application.” Yet, warrant Fiddler’s reliance on the belief informant’s that activity him “strange” is all the more reason for provide reviewing judge with facts bearing on the informant’s veracity. Moreover, if Fiddler himself did not activity find such to be unusual, then investigation further into whether such activity was indicative of Sheridan’s manufacturing meth house was called for. “strange” Also the citizen’s view was the fact that since arrival,
Sheridan’s binning fire was constantly” “almost outside the however, home. This activity, erecting barrier, perfectly legal. Lastly, reported citizen “a short-stay lot” of traffic to and Bamaby from the day night. Again, residence activity such is open interpretations-some lawful, numerous some unlawful. Finally, assuming Barnaby that and Sheridan in fact unloaded “stuff” from the trunk of her occasions, vehicle on one or more that barrier,
they they burning did so behind a makeshift a fire kept a lot of constantly, outside home almost there was traffic Bamaby day night,” hours of to and from residence “at all rise the level only suspicion They these facts illicit activities. II,
certainly do not to the level Article 10 and rise under Sections yield [Bamaby’s] privacy “at which interest must investigating governmental searching interest criminal behavior Sundberg (1988), incriminating Bamaby’s items” home. In closing, Assertion 14. Fiddler stated as follows: “The given in this application informants mentioned have reliable information All past. proven have been reliable with corroborating information resulted arrests separate All above informants are they provided. other, from each and are not aware of the others’ apart
participation.” Analysis: presence applicability of this catchall-the why reviewing provided judge
which is unclear10-reveals Fiddler grounds reliability no on which to assess the of the factual above: he could instead presumed informants discussed he general application that all of the provide assurance the end are Until foregoing today, assertions reliable. there was no factual Rather, explained law. as support technique for this of our case above, reliability. require we individualized assessments (see Furthermore, already as in some detail 128- discussed ¶¶
29), arbitrary Fiddler’s makes his and inaccurate use of labels catchall Tellingly, “[t]he he did not characterize informants apparent. “who . chance application” persons report[ed]..
mentioned as Rather, civic he duty.” encounters] with crime as a characterized them given past” as who “have rehable information “have persons resulted corroborating information that proven been reliable with description they provided.” information This is a arrests police, illegal on the activities of persons reporting who work with report others, by good citizenship are persons who motivated Reesman, 32; Martinez, crime. ¶ chance encounters with See Thus, MT ambiguity in to the “informants mentioned There is some Fiddler’s reference “informants,” only application.” referring persons he who labeled in this Is he using encompass persons, generically to all of the besides his he the term or is colleagues, (Assertions application provided his him information set forth in who with the 13)? through through 6 and various “concerned citizens” and “citizen informants” referenced throughout Fiddler’s do not fit the definition of concerned citizens at all. since, This clarification is important above, as explained
assessment of provided by a concerned quite citizen is different from the assessment of information provided by other person informants. A who is motivated “good citizenship”-which the reviewing judicial officer possibly cannot ascertain unless circumstances which the person’s information became are known disclosed in the application-is presumed telling to be the truth.
Reesman, informants, 34. Other by contrast, enjoy no such presumption. See reason, 35. For this ¶¶ it is essential the applicant properly characterize each person whose information he sets forth in and that he provide facts which support these characterizations. so; Fiddler did not do accordingly, we cannot reasonably presume reliability tips provided by the persons he labeled as “concerned citizens” and “citizen informants.” Having
162¶ assessed the probative relative value of each individual assertion in Fiddler’s search warrant application, I next assess the totality of the application.
C. The Totality of Application Fiddler’s for Search Warrant Judge McNeil’s task was whether, to determine given all the circumstances set forth in application, Fiddler’s there was a fair probability that evidence of the crimes of criminal possession of dangerous drugs and criminal production or manufacture of dangerous drugs would residence, be found in the outbuildings, and numerous junk vehicles on property. Integral to this inquiry, he had to assess the relative weight of each factual assertion set forth in (see Fiddler’s application above), 116-17 heightened mindful of the *43 standard persuasion II, mandated Article Sections 10 and 11. The relative weight of each assertion, turn, factual depended on the (or various indicia reliability attending it-i.e., not attending) the veracity and basis knowledge person the supplying information, any corresponding investigative efforts, or corroborative information, related set forth application, elsewhere (see above). tending to bolster the assertion 95-97 Correspondingly, our reviewing task as a court is to ensure
that judge had a substantial concluding basis for that probable Reesman, 19; Gates, cause 238-39, existed. 462 U.S. at S.Ct. so, doing
2332. In pay great judge’s we deference to the probable cause deference, however, Such is not determination.
boundless: first, clear, magistrate’s that a
It is the deference accorded to finding does into the probable preclude inquiry not knowing falsity reckless of the affidavit on which that or Second, the courts must also insist that determination was based. magistrate purport “perform to his ‘neutral and detached’ merely police.” as a for the stamp
function and not serve rubber neutrality magistrate failing A “manifest that and detachment judicial a a warrant presented demanded of officer when adjunct application” and who acts instead as “an law enforcement provide valid for an otherwise officer” cannot authorization unconstitutional search.
Third, reviewing not a on an courts will defer to warrant based not “provide magistrate affidavit that does with substantial determining probable basis for the existence of cause.” “Sufficient magistrate allow information must be presented cause; probable official to determine his action cannot be mere the bare of others.” Even if the warrant ratification of conclusions affidavit, supported by more than a “bare application was bones” that, may notwithstanding court conclude reviewing properly deserve, the warrant was invalid magistrates deference magistrate’s determination reflected probable-cause because the circumstances, analysis of the totality of the improper respect. improper form of in some because the the warrant 897, 914-15, States Leon 468 U.S. 104 S.Ct. United (citations omitted). 3416-17 and footnotes Thus, simply to-Judge must defer McNeil’s we review-said specifically, we determine cause. More must
determination of judge with sufficient provided whether Fiddler judge’s him to determine cause and whether
allow analysis totality proper determination reflected a probable-cause review, every In draw this we reasonable circumstances. determination, Reesman, possible support Judge McNeil’s inference blindly conclusory labels and accepting not mean which does but, rather, means the search assertions warrant Black’s presented],” [the facts “deducing logical consequence 2004). (8th ed. Dictionary Law approach, under Assessing Fiddler’s McNeil to draw-that Sheridan was Judge he asked
inferences there were Bamaby’s a meth lab residence operating
275 production associated with the of meth in ingredients apparatus residence, outbuildings, junk and numerous vehicles” on “the Barnaby’s February 11, on property plausible, or about 2002-while insufficiently Reduced to its improperly supported. were essentials, Sheridan application merely Fiddler’s disclosed that was tablets, toluol, purchasing, stealing, suphedrine and at times “large or that pseudoephedrine ephedrine; odd amounts” she had meth; reputation living and that had been manufacturing for she Barnaby. nothing with there in part-time Significantly, rather, conduct; in implicates Barnaby that criminal search of on the that his home was based inference evidence of Sheridan’s illicit activities on present property. his In regard, points the Court out warrant included “credible information Sheridan’s involvement the production methamphetamines,” ¶ “rehable frequent-or part-time”-presenee
information” of Sheridan’s “at least residence, Barnaby’s Yet, at 34. none this “credible” and ¶ “reliable” links Barnaby’s production Sheridan’s meth residence. words, In other if it part-time even was true that Sheridan resided Barnaby early 2002, in late residence 2001 and that she knew how meth, that acquired ingredients to manufacture she had and possessed apparatus consistent with the manufacture of meth at various times past, in the she engaged and that the manufacture of meth at past, necessarily various times in the it does not follow evidence Barnaby’s of such illicit conduct would on property be found February 11, Certainly, not assumptions these do rise to the probable Griffin, level search his home. See State v. 2004 (“Just 143, 24, 102 MT 324 Mont. P.3d ¶ because ¶ it, pipe pocket [driver] has a his untested residue on white offense.”). drug not mean does his vehicle will contain evidence of a acknowledges presence The Court “that Sheridan’s mere at the house does not amount to sufficient search probable cause to (“We 36; agree
residence.” also that it not see does follow all cases, ‘simply from the existence of believe a suspect cause to ” guilty, there is (quoting also cause to his residence.’ 264)). Thus, Kaluza Mont. 865 P.2d Gray, the Court MT cites State Marks, 285, 312 468, 59 and State v. St. MT proposition may criminal conduct Sheridan Yet,
“impute[d]” Barnaby. See aside from the fact that these hand, readily distinguishable are cases case at Court’s reasoning suspicious analytically imputation flawed: of Sheridan’s criminal Barnaby undertaking activities to does establish his house; instance, Gray, rather, depends it on the existence of one. For suspicious activity supposedly imputed Gray building was the associate, Gray’s Wallace, portion Gray’s upper of a room 4,21. Gray’s marijuana grow operation. Gray, to facilitate residence *45 history Obviously, by Wallace, who a criminal activity this had Gray’s involving pertained directly to the search of dangerous drugs, Likewise, Marks, in St. the search warrant residence. Torres, associate, engaged
disclosed that both St. Marks and his were Marks, Thus, together dealing drugs. in St. 5. Torres’s arrest and very drug of and large of amounts cocaine-the St. Marks possession reliability selling-“provided Torres an indicia of allegedly been alleged concerning informant’s] confidential statements about the [the Marks, activity of Marks.” St. criminal St. hand, by contrast, at In the case Fiddler’s discloses activity Barnaby, much part
no illicit whatsoever on the of less Bamaby’s suspicious in Sheridan’s activities. Not participation therefore, the Court sets forth no factual basis for surprisingly, Yet, it them. as imputing Barnaby; simply imputes these activities to Barnaby above, premises the that Sheridan lived with part-time stated not, by themselves, meth do production and was involved the fair of the latter would be found probability establish a evidence Rather, February 11, the crucial link in Barnaby’s home on referenced in Assertions this chain comes from the informants above, following who, information: reported and as set forth the Barnaby Barnaby residence and is living that Sheridan is with at meth lab this and at a residence in Dixon operating a at location (Assertion 9, Fiddler on the “concerned citizen” who contacted area 7, 2001); operating a meth lab at the that Sheridan is November Ignatius at in the St. Barnaby possibly residence and another residence (Assertion 10, Fiddler on the “citizen informant” who contacted area at 28, 2001); “things strange” have been November (Assertion person, Barnaby past residence “in the two months” informant,” a “concerned citizen” and “citizen labeled as both 2002). January on Fiddler contact whom made 37 with (compare ¶¶ on these three assertions Relying “ ” that evidence
144,150), probable ‘inferís]’ cause to believe the Court Barnaby’s from residence Sheridan’s illicit activities located there, occurring allegedly “suspicious illegal” activities reasoning were it not for the agree with this might be inclined to 37.1 purportedly suspicious fact that the who described the informants illegal 9,10, reliability, and 13 are of unknown activities Assertions bare, tips; suspicions as are their are not a unsubstantiated warrant, search Bennett sufficient basis which issue a (“Probable (1972), cause . . . distinguished being suspicion.” (emphasis
has been more than bare added) (citing Brinegar United States 338 U.S. 1310)).
S.Ct. reasoning-indeed, The flaw in the Court’s in its approach
this it apparent question entire case-is seeks to answer. Court, to the
According we must determine whether Sheridan’s production methamphetamines, involvement her continued house, presence Barnaby’s operated at reports two that Sheridan Bamaby’s house, meth report suspicious activity lab and the Barnaby’s house since Sheridan’s arrival amount to a substantial basis determining for whether cause supported issuance
search warrant home. 39. The answer to question, course, yes, this information does amount substantial basis for determining supported whether the issuance of the only worthy Thus, warrant-but the information is of belief. if simply Court wrong question, has answered the which is whether *46 belief, Assertions and 13 are of worthy individually either or collectively. Unquestionably, 9 and they Assertions been properly
corroborated, would have probable established cause to search Bamaby’s residence a within reasonable time after the were tips is, however, received in November 2001. As it allegations these naked probative are than anonymous by even less the letter received the (which police in related concerning Gates an assortment of details alleged Gateses’ criminal activities that the investigating detective major then part). in these corroborated Are informants honest? Is their information reliable? As several already, discussed times we are unable ascertain to whether Fiddler’s these characterizations of persons informant,” as a citizen” respectively, “concerned and a “citizen (see Furthermore, 13), are acknowledges accurate. as the Court Fiddler failed to state the or source of basis for these informants’ allegations operating Barnaby’s Sheridan was a meth lab at rumor, allegations vendetta, speculation, reprisal, residence. Were wonder, bar We gossip, Judge and/or talk? are left to as should McNeil have, since Fiddler neither corroborated this information nor set forth a worthy factual basis on which to conclude that were of tips Thus, totality-of-the-circumstances analysis. by
weight in the themselves, finding not a support probable these assertions do of cause. Again, true of Assertion 13. there is no factual The same is of crediting in for Fiddler’s use the labels
basis if person citizen” and “citizen informant.” But even “concerned citizenship good referenced in Assertion was motivated gained a chance encounter incriminating through disclose information given of informants who “have reliable with crime or one Fiddler’s proven past” information in the and “have been reliable arrests from the corroborating information resulted (the catchall), they provided” Assertion 14 the events he observed, though they may him, were unlawful. have been “odd” 9,10, Thus, only question Assertions remaining is whether together, probable add to search up taken cause regard, correctly “[flactors the Court notes that home. In this own, under the probative little value on their when considered possess test, for a totality provide support of the circumstances can evidence to conclude cause determination substantial other information.” existed considered combination with when Indeed, necessarily in an information is not deficiency a informant’s if forth in finding other circumstances set fatal deficiency-which precisely application compensate for approach. point totality-of-the-circumstances earlier, instance, deficiency as For discussed determining may compensated for,
informant’s veracity be showing as to basis of reliability tip, by strong his his overall deficiency knowledge Similarly, a an informant’s basis knowledge. showing veracity; his and a
may by strong for compensated be knowledge may compensated veracity in his and basis of deficiency Gates, 462 See U.S. 233- tip. corroboration his independent 2329-30, vein, a tip In the same 241-42, 103 S.Ct. bolster, may probative little value on its own be bolstered possessing information set forth elsewhere by, related and more reliable 2001 MT Gray, ¶¶ See State application. warrant (1993), 17, 21; v. Rinehart 21, 38 P.3d ¶¶
Mont. 1219, 1223; Holstine *47 (1992), Mont. 110, 113; Campbell Gates, 233, 103 S.Ct. at 2329. 427, 429; 462 U.S. 425, 428, 838 P.2d however, application, to Fiddler’s principles these applying In deficiency,” for the meaning “compensate Court distorts (Assertions 9,10, 13), concluding grossly tips that three deficient together, magically nullify considered can each other’s when up and add to a fair that evidence of a crime shortcomings probability 37,46. words, in to place will be found be searched. See In other ¶¶ adopts an approach the Court under which a collection of assertions can, possessing negligible probative each value on their own in numbers, Thus, up probable add to cause. while one sufficient anonymous tip probable is not to Crimestoppers’ adequate support cause, Rinehart, see 262 Mont. at three are under the Court’s new standard. apparently This is the result of the Court’s “simply
overruling]” jurisprudence our search and seizure “the proposition independent police set forth xsxReesman that represents only work totality test,” method of corroboration under the of the circumstances unduly which the Court characterizes as “an that restrictive rule never been imposed.” Although should have the Court does not specify other analysis what methods corroboration are proper, its suggests that unsubstantiated tips informants whom about we nothing are told can corroborate other such each to an extent established, cause is leaving question one to whether Court’s admonishment law enforcement “to corroborate independently information from sources of questionable reliability,” service, merely lip or applicable a directive that ad hoc obviously basis-but not this case. = any event, In the Court’s novel “0 + 0 0 + Probable Cause”
approach only law, no support finds in Gates or of our case but against also protections renders constitutional unreasonable II, searches and seizures hollow formalisms. Article Sections 10 and 11, require that the factual assertions set forth in a warrant stringently such the reviewing judicial be buttressed officer and independent has a concrete sense that contraband or (see evidence of a crime be found be place will searched 90¶ above). mandate, Notwithstanding today constitutional the Court necessary reduces the level of persuasion to establish
to issue a warrant arguably this State a standard that satisfy does not even the Fourth Amendment. The fact is that report nothing of one informant about told whom we are and the conjecture of two other about we nothing informants whom are told very up little-certainly add not a concrete independent sense of a crime will place contraband evidence be found determining probability, searched. “In it is not the number of *48 280
statements, tips relative to the common or events that determinative one, force of some or all of them. approach, probative it is the sense strengthened by is not probable cause Insufficient data establish 493, 830 Mont. at P.2d at 1258. The repetition.” Valley, or 252 number greater right privacy renders the contrary Court’s conclusion II, 10, nullity in the search practical exists under Article Section seizure context. 9,10, and 13 have But if it could be said that Assertions even the facts that would then be
probative together, force when considered tips untimely these three are vis-a-vis date established “The factors application. supporting Fiddler’s search warrant they must that the
cause must not
stale and
indicate
contraband
be
Holstine,
at the
searched.”
260 Mont.
presently
place
evidence would
be
added). “An
must set forth
314,
(emphasis
at
dwindles of a indicating activity recites facts properly the affidavit nature, conduct, course of and continuous protracted significant. less passage of time becomes (internal 428, 838 429 marks quotation 254 P.2d at
Campbell, Mont.
omitted) (1984), Mont. (quoting State v. O’Neill 60, 14, 293 Anderson,
760, 765); 1999 MT see also State v. 9,10, hand, in Assertions the activities described In the case at protracted of a or continuous long-established or and 13 were not Fiddler’s passed the amount of time that between nature relative to application. submitting his search warrant and his receiving tips these living 5,2001, Fyant reported that Sheridan was Officer On November (Assertion 8). 7, 2001, a On November at her home part-time parents’ Barnaby living at the reported citizen” Sheridan “concerned 9). (Assertion January 17, 2002, on informant And residence a lot of time at been spending vehicle had reported that Sheridan’s 13). (Assertion Thus, it “in months” past two Barnaby residence months, beginning November approximately that for two seems least, or, Sheridan lived a lot time” at part-time “spen[t] Bamaby’s residence. But is no do so there indication whether she continued to after
January fact, 2002-a crucial since basis searching Bamaby’s four alleged house weeks later was Sheridan’s meth-related no Similarly, activities there. there is indication whether the meth production reported on November and November
(Assertions 10) things reported January 17, 9 and and the “strange” (Assertion 13) occurring February 11,2002 were still on or about (the date of Fiddler’s Even an application). investigation Fiddler desirable,” complete yet that was “less than proximate would February 11, 2002, requirement. could have satisfied timeliness *49 (1991), 169, 173-74, 810 299, 302. See v. Crowder is, however, As it his application discloses no corroboration whatsoever 10, 9, of information set forth in Assertions and 13 and no for presuming reasonable basis that Sheridan cooking was still meth Bamaby’s Thus, at house. as far as we know from Fiddler’s application, the illicit allegedly occurring activities Bamaby’s on property between January November and 2002 had all ceased February 11, 2002, living and Sheridan full-time parents’ was at her house and manufacturing all of her meth there. sum, In what dealing we are with are three informants about absolutely we nothing,
whom know whose information was obtained sources, from unknown and whose corroborated, observations were not allegations-that whose cooking but was Barnaby’s Sheridan meth at residence, where “odd” events have taken place-comprised finding
essential for a of probable basis cause to search his home. To sure, tips inflammatory; however, their are bare suspicion and innuendo derived from uncorroborated observations of unknown homes, informants are not a basis on which to invade our citizens’ together Assertions and 13-taken with the other assertions in application-do not of persuasion required rise the level under II, Article Sections 10 and to establish to issue a search warrant.
CONCLUSION Judge concluding McNeil did have a substantial basis for surrounding that cause existed home and property. application nothing Fiddler’s for search warrant relied on innuendo, suspicion, judicial than more ratification. With the exception of Assertions none of the factual assertions-set forth assertions-at least none of crucial factual corroborated, provided he no investigated his concerning veracity persons whose facts whatsoever end Rather, he on a catchall near the imparted. information he relied Notably, of that all of his informants were reliable. his corroborating persons proven of had been reliable with while all these they not so on this past,” proven information “in the were occasion. Cf. (“An officer’s
Gates, 462
at
here.
believe
II,
protections
afforded under Article
greater
which is bound
11, of
Constitution-should
Sections 10 and
the Montana
enable
foot soldiers
sort
work evident here. The courts cannot become
police
role
drugs
expense
independent
at the
their
the war
needs
law enforcement stand
guardians
the Constitution. “The
protections of
individual
constant tension with the Constitution’s
It
power.
precisely
certain
of official
against
exercises
loyalty
these
that counsels
resolute
predictability
pressures
v. United States
safeguards.” Almeida-Sanchez
constitutional
observed,
Justice Jackson
93 S.Ct.
2540. As
U.S.
(seeAlmeida-Sanchez,
Nuremberg
Trials
soon after his return
2540):
These Amendment [Fourth catalog rights belong indispensable of but second-class in Among rights, none is so effective deprivations freedoms. and the of the individual
cowing crushing spirit a population, is search and seizure every in heart. Uncontrolled putting terror every in weapons the and effective the arsenal one of first most only briefly need to dwelt arbitrary And one have government. many admirable among possessed a people
and worked rights that the human deprived of these to know qualities but disappear dignity and self-reliance deteriorates and personality subject any hour to homes, are at possessions and persons where by the police. unheralded search and seizure J., (Jackson, joined by 180-81, 69 S.Ct.
Brinegar, 338 U.S. JJ., dissenting). Murphy, and
Frankfurter Court’s to these is all duty rights This enforce Montana given right more compelling privacy guaranteed by broader II, it this, Article Section 10. While is difficult to do so cases as such place searched, evidence of illicit activities found in where reality right is that privacy contours of the vis-a-vis the government’s often, interest out if ferreting crime most not always, given meaning in such contexts. right against
[T]he to be secure one searches and seizures is of the protect. most difficult to Since the are officers themselves the invaders, chief is no there enforcement outside of court. and
Only flagrant occasional more abuses come courts, only attention and then those where the search and yields incriminating seizure evidence and the defendant is at least sufficiently compromised to If the be indicted. officers raid a home, office, stop or and an nothing search automobile but find incriminating, personal liberty this invasion of the of the innocent too practical be, often finds no redress. I may There and am are, convinced that there many unlawful searches of homes and automobiles innocent people nothing which turn up incriminating, made, in which no about arrest which courts do nothing, and which about we never hear. protect
Courts can against innocent such only invasions indirectly through of excluding medium evidence obtained against frequently those who . guilty. against [A] are . . search Brinegar’s car regarded must be as a search of the car of Everyman.
Brinegar, (Jackson, joined 338 U.S. at J., S.Ct. at 1313-14 JJ., and Murphy, dissenting). Likewise, Frankfurter a search of regarded must every home be search of the home of sanctioning Montanan. In application, Fiddler’s warrant places Court jeopardy right all Montanans secure against unreasonable searches and seizures. respect opinion With our in that did case impose any obligations
establish new or on police, law new contrary, prosecutors, judges. above, opinion To the as explained merely pulled together place precedent one extant
unambiguously existing articulated Montana search and seizure types to the jurisprudence respect use various of information applications, hope expectation in search warrant all in the that the activity police investigate suspected thoroughly, would criminal more police prosecutors applications would draft more concise *51 284 warrants, vigilant be more and that the lower courts would
search cause, requirement faithful assessing the constitutional enjoyed all Montanans greater rights privacy of individual II, under Article Sections 10 my view, Opinion, only pays already, As stated Court’s approach and the lip principles
mere service to Reesman from the Reesman framework cases it cites. The Court’s deviation overrules-or, 41; Today’s it “slightn,” Opinion is substantial. ¶ minimum, State array precedents calls into that includes doubt-an 272, 25, 173, 25, 31, 31, 323 Mont. 99 P.3d Meyer, v. 2004 MT ¶¶ ¶¶ 176, 185, 25, Bowman, 119, 30, MT Mont. 31; State v. 2004 321 ¶ ¶¶ Olson, 61, 25-27, 30, 986, 30; v. MT 314 89 P.3d State 2003 ¶ ¶¶ ¶ 297, Grams, 25-27, 25-27; v. MT 402, 66 P.3d State 2002 Mont. ¶¶ ¶¶ 897, 17-19; 188, 17-19, 102, 17-19, 53 State v. Mont. P.3d ¶¶ 311 ¶¶ ¶¶ 124, 17, 775, 17; 38 P.3d State Gray, ¶ 2001 MT 307 Mont. ¶ ¶ 55, 439, 20-22, Worrall, 20-22, 976 P.2d v. 1999 MT 293 Mont. ¶¶ ¶¶ Oleson, 139, 20-22; 13-15, MT 289 Mont. State v. 1998 ¶¶ ¶¶ 13-15; (1997), 13-15, v. 284 Mont. 959 P.2d State Adams ¶¶ ¶¶ 955, 961-62; (1995), Mont. 36-37, State v. Kaluza 272 943 P.2d 195, 199, 900 410-11, 901 107, 111; (1995), v. 272 P.2d State Lott Mont. (1993), 204, 209-14, Mont. 864 309;
P.2d State v. Rinehart 262 310, 314-15, (1993), 1219, 1222-25; v. Holstine 260 Mont. P.2d State 425, 427-29, 110, 112-13; (1992), 254 v. Mont. Campbell 860 P.2d State (1992), 317, 319-20, 427, 429; Mont. 837 838 P.2d State v. Wilson 254 (1992), 489, 492-94, Mont. 1346, 1347-48; Valley v. P.2d State 169, 173-74, 1255, 1257-58; (1991), 248 P.2d State v. Crowder Mont. (1989), 302; Seaman 236 Mont.
810 P.2d 218, 222-23, 768 (1989), P.2d 950, 953; P.2d v. State Walston 115, 120-21, (1988), 235 Mont. 1387, 1390; Sundberg (1982), 330, 342-43, 641
736, 740; Mont. State v. Isom 151, 154-55, 589 P.2d 424; and State v. Olson “mischaracterizes” the this Dissent Court claims “strike[s] it 44. It us that impact its on Reesman. assures decision 44; vitality Meyer,” glancing upon the continued not even a blow Bowman, analyses “fully agree[s]” that it overrule[d]” in our Grams, “simply has Olson, 45; and that it rule that never unduly restrictive and seizure “an jurisprudence assurances, 45. These imposed” by have should been overruling the Court is however, saying I am not point. miss the Bowman, Olson, Grams, cases cited other Meyer, results Rather, saying above. I am analyzing Fiddler’s search warrant application pursuant utterly contrary to an approach that is so to the forth step-by-step (compare framework we set in Reesman 31-37 & *52 Opinion 28-35), 46 of the Court’s the Court necessarily and unavoidably calls into doubt case that follows the approach, Reesman not to mention the cases from which the Reesman framework was derived. Indeed, acknowledges the Court implicitly. much-albeit
Laboring under the misconception that Reesman does not permit tip possessing probative bolster, little on value its own to or be bolstered by, related more reliable set forth elsewhere in the search warrant application, Court reduces Reesman mere guidelines,” “useful which the Court then as “impractical” dismisses this, cases such as where the receive police tips reliability of dubious credibility. informants of unknown 41. If the Court can bring only pay framework, itself lip service to the Reesman then it should just overrule Reesman line of explicitly. cases drugs war on must become war on the constitutional
right of Montanans to be free from unreasonable searches and seizures in their homes. “The Fourth is a Amendment charter of freedom that protected against should be more, incremental erosion.”11 So much then, should this Court support, protect, greater and defend the protections II, afforded Article Sections of Montana’s Constitution. reasons, For all of I vigorously these dissent. Rothstein, topic speaking Legal Professor Mark on the of “The Social and
Implications Fingerprinting Expansion” Symposium of DNA Database the National DNA Liberties, Society Law, sponsored and Civil the American Medicine 2006). (Boston, Mass., May and Ethics notes “to week