*1 MONTANA, STATE OF Appellant, Plaintiff ERLER, MARK Martin, Defendant Mark a/k/a Respondent. No. 82-358. Oct.
Submitted
Decided Nov.
County, suppressing all evidence seized ant’s search conducted December residence applica- because the illegal 1981. The search was held to be es- to have failed to tion for the search warrant was found de- justify search tablish fendant, Mark Erler’s residence. did application
We find that for the issuance support cause to contain sufficient District warrant and reverse the order Court.
On Undersheriff December *3 County law by Clark Tom Dawson was advised Lewis and indicating had received they enforcement officers of a entering Lewis marijuana and cocaine would be Mark County residence of County Clark from the Jefferson Further, transported in a Chev- the were to be drugs Erler. Olson, license registered Cynthia rolet to a with Malibu identi- the was not Although 5-50069. informant number they fied, County did state Lewis and Clark officers person the same had information from received reliable three previous occasions. knowledge and his
On basis of above information the the up miles two approximately is located Erler’s residence 91, Undersheriff Highway Basin Creek from U.S. Road county junction at the positioned deputy Dawson 29, 1981, ob- deputy the December p.m. two At 10:37 roads. Highway entering automobile the above-described served County of- and Clark Basin Road. Lewis 91 from the Creek stopped vehicle was and the Olson ficers were so notified approximately one mile Clark County inside Lewis and p.m. line at 11:18 approximately It had traveled 35 miles in vehicle, minutes. The registered owner of the her hus- car, band and Theresa Jo were in together Bennett with approximately one pounds marijuana. and one-half of applied
Undersheriff Dawson of then to a for a search warrant to search Mark Erler’s residence. The application contained the information set forth above. The warrant was issued and a search the residence was con- early 30, ducted in morning hours of December cash, paraphernalia, search drug uncovered $2070 marijuana and other It is that controlled substances. evi- dence erroneously which the State was suppressed contends by the District Court.
To determine
whether there was
cause to is
warrant,
sue the instant
only
we must
at the
look
information contained
the four
within
corners
the search
State
Isom
application.
(1982),
warrant
330,]
Mont.
[196
Prior recent Court’s de Illinois v. (1983), Gates 213,] cision U.S. [462 2317, 527, (and 76 L.Ed.2d an informant’s thus the in application) formation in the rigidly had to meet the inter preted “two-prong Aguilar v. Texas test” set forth U.S. L.Ed.2d for de termining whether issuing exists for warrant before would be That is: valid. must be informed of some the cir- cumstances underlying the informant’s conclusions or his *4 knowledge”; “basis of
2. magistrate The of the cir- must be informed of some in- underlying cumstances the officer’s conclusions Aguilar, formant was credible or his information reliable. 92 1514, p. 12 at 729. 114, p. L.Ed.2d p.
“In the absence a statement of impor- especially it is gathered, which the information was activity in criminal the accused’s tant describe he is may know that magistrate sufficient detail a casual rumor more substantial than relying something merely based circulating in the underworld or an accusation 393 U.S. at Spinelli, general reputation.” on an individual’s 416, 589, p. p. p. at L.Ed.2d at S.Ct. case, pre-Aguilar indicated that a Spinelli
The case also 329, v. 358 U.S. Draper determining the authority 3 L.Ed.2d remains the for Thus, personal veracity tip. informant’s an officer’s an very verification, of an informant’s through corroboration verify a specific allegations, is sufficient circumstance reliable. is credible or conclusion that the information 416-417, p. S.Ct. at Spinelli, pp. 393 U.S. at p. L.Ed.2d at Gates, however, Supreme Court supra,
In Illinois Aguilar and re- test set forth two-prong abandoned the determining standard turned to a more traditional issue a search whether cause exists to Gates test tip. informant’s warrant on the basis of an in- analysis and “totality involves a circumstances” the. Aguilar requir- without corporates specifics set forth before every proved element be ing that each and aspects of the absurdly technical cause can be found. The previous test are thus abandoned. practical, “make a simply must now whether, all the circum given
common-sense decision him, including stances in the affidavit before set forth her- supplying ‘veracity’ knowledge’ persons and ‘basis
93 information, esay contraband probability there is that a fair place.” in particular or evidence of a crime will found a be Gates, Illinois v. p. at p--, 462 U.S. at p. Then, reviewing the the L.Ed.2d at standard for v. United set forth in Jones concept court is a return to the States p. p. 725 at U.S. 257 at p. 708, duty reviewing L.Ed.2d 697 at the of a court is simply magistrate to ensure that had substantial the concluding basis for cause issue a search probable to warrant existed. probable issuance of requirement cause for the is warrant found the Fourth Amendment to the
United “. . . shall States Constitution: no warrant issue but upon cause, affirmation, probable supported by oath or searched, particularly describing place the to be and the seized;” person II, things or to be and in Section Article Eleven “. . . of the Montana Constitution: No war- State any place, any rant to search seize or person thing or shall issue without describing place per- the to be searched or the son seized, cause, or to thing sup- be without or ported by or oath to writing.” affirmation
We find sufficient the to issue Aguilar the instant case under either the Spinelli the Gates test set or by forth Court.
The Aguilar-Spinelli Test Although in- was never told the knowledge”, formant’s “basis of suffi- contained ciently detailed to information enable the reach the determination on “some- was based thing more substantial a casual rumor” or an accusa- than tion “merely reputation.” based on general [defendant’s] of car informant knew such details as the model which leaving would be its li- carrying drugs, defendant’s house cense registered number and its owner. information is That much “casual specific part too to be of a rumor”. considered specific Further, the informant’s information was substan- tially by County enforcement of- corroborated law verifying credibility ficers, thus of the informant both the reliability re- and the of his information. The information regis- garding car, license and its make its number allegation corroborated, was that the owner was as tered quantity only marijuana. The infor- would car contain a by the car mation not the officers was that corroborated coming However, the would be from Mark Erler’s residence. approximately res- was seen miles defendant’s car two from usually taken to Lewis idence the route which would be Together *6 and Clark from with the that residence. very specific, tip, other, of the corroboration of the seeing details was reason for the Olson’s car on that route justice peace awas of the to determine that there probability Erler’s the car had come from residence that and to find to issue warrant to cause the house.
The Gates Test Agui- upheld under Since we have the search warrant Spinelli test, is there no doubt but that the warrant lar is stringent Gates. valid less test of Given also specific under the abil- the officers’ details of the informant’s and ity details, basis was substantial to corroborate those there of the to make the determination probability or evidence [was] “there a fair contraband Erler. of Mark crime” be at the residence of a would found is The search order District Court reversed. acquired aas all warrant is held to be valid and evidence against defendant, result of that warrant is admissible Mark Erler. HARRISON,
MR. GULBRANDSON JUSTICES WEBER concur. file will SHEEHY
MR. SHEA and JUSTICES dissent written dissents later.
MR. CHIEF JUSTICE HASWELL specially concurring:
I concur in the result on
ground
existed for issuing a
search warrant under Illinois
Gates
213,]
U.S.