*1 OF STATE MONTANA, Respondent,
Plaintiff and APRIL T. MARKS and TONY MARKS, Appellants.
Defendants
No. 01-623 and 01-626.
February 21,
Submitted on Briefs
2002.
Decided November
2002.
Rehearing
Denied December
2002.
For General, Paxinos, Fowler, Helena; Dennis Attorney Mark Assistant Twito, County Attorney, Attorney; Deputy Scott County Yellowstone Billings. Opinion the Court.
JUSTICE REGNIER delivered (“the Markses”) Tony appeal T. Marks from the April Marks ¶1 February 21,2001, by the Montana Thirteenth Judicial Order entered Court, denying County, suppress their motion District Yellowstone seized to a search warrant. We affirm. following presented appeal: on The issue ¶2 determining in there was the District Court erred Whether a search warrant? support cause to the issuance of sufficient FACTUAL AND PROCEDURAL BACKGROUND for a were in the search following The set forth personal own our review: Markses pertinent At Billings, in Montana. at 310 Ecton Circle residence located 27,1999, neighbor called 911 to on p.m. 2:03 October approximately Billings Fire at Markses’ home. Members of a fire report arrival, Upon minutes later. at the scene several Department arrived firefighters coming flames observed from the windows and the roof Eventually, the northwest comer of the Markses’ home. the fire was extinguished. Mrs. Marks Department was at the scene as Fire officers
contained the blaze. She stated to Fire Department Staley Officer John that she had left her home at approximately p.m., 2:00 returned approximately 20 minutes later and smelled smoke when she opened the door to her home. contained, After the fire Deputy Fire Marshal Ted Warren Warren”)
(“Deputy Marshal entered the home and started to investigate the cause and origin Upon house, of the fire. entering the it appeared to him that some of the contents of the house had been removed before the fire because the house contained few items of clothing. furniture or He also noticed that the fire had heavy caused fire and smoke damage. opinion, In his such damage was inconsistent with an only twenty absence of minutes. (“Detective Richardson”) Blake Richardson
Billings Department Police was called to the scene. Detective Richardson is a member of the Billings Team, Arson which is comprised of officers from Billings Department, Police Billings Fire Department, County the Yellowstone Office, Sheriffs and the Alcohol, Federal Tobacco, Bureau of Upon arrival, Firearms. his *3 Detective Richardson was by Deputy informed Marshal Warren that the fire appeared suspicious and an arson investigation should be Shortly thereafter, conducted. spoke Detective Richardson with Mr. Marks on the scene. Detective Richardson identified himself as a Billings member of the Arson Team and told him that the Fire thought Marshall the fire was suspicious and an investigation arson would be conducted. stated, Mr. Marks then you “Do think I torched my own house?” Detective Richardson responded that he did not know requested and that Mr. sign Marks a consent to search the house for regarding evidence origin cause and of the fire. Mr. Marks was sign reluctant to the consent spoke brother, and to his who was also at the scene. His brother called an attorney regarding the consent to search. Subsequently, both Mr. and Mrs. signed Marks consents to However, search their house. their consents to search were not utilized since Mr. Marks was reluctant to allow officers into the house after signing the consent. Additionally, Mr. Marks stated that Mrs. Marks “was out of her mind and going bonkers about fire.” The officers at the scene felt that Mrs. Marks’ consent to search would be invalid based on her state of Consequently, mind. Detective Richardson
172 day stating for a applied search warrant that same the aforementioned grounds cause, Finding probable facts as cause. Justice of the Peace Pedro Hernandez issued a warrant to search the containers, ignitable liquids, liquid timing ignitable Markses’ home for devices, matches, lighters, gas torches, cigarettes, equipment, electrical documents, phone financial equipment, mechanical insurance and records, being premises prior of items removed from the evidence the fire. to home, During police of the Markses’ seized the search
financial numbers phone for cellular insurance documents and phones by police investigative owned the Markses. later The obtained to Markses’ subpoenas review additional financial documents and the phone implicated The seized the Markses cellular accounts. 10, 2000, in the arson home. Yellowstone August of their On County separate Mr. and Attorney charging filed informations Mrs. 45-6-103, January 4,2001, of MCA. Marks with arson in violation On § Marks charging the State filed an amended information Mr. with 45-6-103, MCA, 45-2- by accountability arson and § violation 302, MCA. 2, 2001, jointly a motion January On Markses filed to resulting home.
suppress all evidence from the search of their The 8, suppression hearing February on 2001. On District Court held a 21, February denying District entered an Order their Court pled guilty Mrs. and Mr. Marks motion. Marks to the offense arson 11, 2001, guilty accountability April pled the offense arson on plea agreements. their The terms of individual Alford July 10, Judgments against on Court entered Markses District suspended 2001, sentencing year Mrs. Marks to a three sentence and For year suspended appeal. Marks to Markses Mr. a five sentence. Markses’ consolidated. purposes appeal, the cases were REVIEW
STANDARD OF suppress a district court’s denial of motion to We review clearly erroneous findings the court’s of fact are determine whether law is interpretation and whether the court’s 124, 10, 250, 10, 307 Gray, See 2001 MT Mont. ¶ ¶ correct. State v. Reesman, 243, 18, MT 775, (citing P.3d State ¶ 18). 408, 18, 10 P.3d
DISCUSSION determining there was District Court erred Whether the probable sufficient cause to support the issuance of a search warrant? argue application Markses that the for search warrant prepared by does requirements Richardson not meet the of 46-5-221, First, they allege MCA. application § does not meet requirements 46-5-221(1), MCA, only § because it establishes suspicion, probable cause, not that the crime of arson was committed. Second, they claim the application presented in this matter analogous to application invalidated in Application Gray (1970), 510, 532, 155 Mont. 473 P.2d applications since both failed to state upon finding probable which a any cause could made that of the property or items to be seized were connected with the offenses allegedly committed, as required by 46-5-221(2), Third, they MCA. § assert application sets forth no facts any
that of the items to be seized would be found in their home. failures, Because of these the Markses contend that the search invalid, warrant unconstitutional, search and the evidence seized suppressed. must be response, In the State totality maintains the of the circumstances
set forth in the four comers of the application warrant established a probability fair that the crime of arson had occurred at the Markses’ particular, residence. In points State out that issuing the court warrant was informed that a sizable fire had nearly consumed a home devoid of furniture or personal belongings. addition, the warrant application provided that Mrs. Marks’ regarding statements length her of absence were inconsistent with the magnitude of damage. fire Further, stated facts demonstrating that Mr. Marks’ behavior was atypical of a fire victim. The additionally argues State facts, these practical as evaluated in a manner common-sense by the issuing magistrate, established a substantial basis to believe the sought evidence was connected to the crime of arson and would be found in the Markses’ agree. residence. We Pursuant 46-5-101(1), MCA, to § a search place may of a be made may be seized the authority of a valid search warrant. A warrant is valid if in support made thereof states sufficient to show cause in accordance with the requirements 46-5-221, MCA. See State Kuneff, 287, 1998 MT (citation 474, 21, omitted). 970 P.2d Section 46-5-221, MCA, provides:
Grounds for search judge warrant. A shall issue a search person upon to a application, in writing by telephone, made affirmation, under oath or that:
(1) to support probable states facts sufficient cause to believe that committed; an offense has been
(2) probable to support states facts sufficient cause to believe that evidence, contraband, persons may or connected with the offense found; (3) object, particularly place, persons describes the to be searched; and
(4) particularly describes seized. who or what to be “totality have of the adopted We circumstances” test set (1983), 213, 2317, in U.S. forth Illinois v. Gates 462 103 S.Ct. 76 527, probable Gray 1, whether cause exists. See L.Ed.2d determine (citation omitted). 13 The Court in Gates that: ¶ held issuing magistrate simply practical,
The task of to make a whether, given decision all the circumstances set common-sense him, including “veracity” forth in the affidavit before information, knowledge” persons supplying hearsay ‘basis probability there is a fair that contraband or evidence of a crime particular in a place. will be found Gates, 238, 103 2332, 462 U.S. 76 548. at S.Ct. at L.Ed.2d at We have held that cause exists when circumstances in presented “would an the mind of a reasonable warrant honest belief been, being, man that the offense has or is committed and prudent sought designated.” Kuneff, exists 22 property place at the ¶ 424). (1982), 330, 417, 343, v. 641 P.2d (quoting State Isom 196 Mont. Therefore, require a cause does not determination activity. sufficient prima showing facie of criminal See State make 366, 211, 27, 27, 101, P.3d 27 Griggs, 2001 MT 306 Mont. 34 ¶ ¶ ¶ (citations omitted). Rather, issuing only magistrate must probability is a fair that an offense has been determine there sought and that the contraband or evidence will be found committed (citations omitted). place designated. Griggs, See 27 at ¶ solely circumstances totality test, we must look Under 13 application. Gray, See the four corners of the search warrant (citation omitted). so, review search doing we must refuse to (citation 11 by Gray, sentence sentence. See omitted). entire to determine Instead, must examine the affidavit to conclude magistrate had a substantial basis issuing whether the (citation omitted). As the United Gray, 11 probable cause existed. See 1 Gray, Gray Opinion to State v. hereinafter in this refer All references to 775. 38 P.3d MT Supreme pointed States Court out in Gates: [probable cause] process certainties, does not deal with hard probabilities. Long but with probabilities before the law of such, practical articulated as people formulated certain common- behavior; sense conclusions jurors about human as factfinders are permitted to do the same and so are law enforcement officers. Finally, the evidence thus weighed collected must be seen and not in library analysis by scholars, terms of but as understood those versed in the field of law enforcement.
Gates,
231-232, 103
Gray
distinguishable
are
from those presented in this
case.
Application
Gray, the affiant stated no facts that a crime was
of
committed or that
sought
the evidence
to
connected
the crime
allegedly
Application
committed.
Gray,
155 Mont. at
P.2d
473
Instead,
at 537.
merely
the affiant
stated that he “has actual
knowledge and does
designated
believe” that the
articles
in
involved
burglary
crime of
premises
were located on the
to be searched.
Application
Gray,
518-519,
155 Mont. at
Here,
Gray, Therefore, application a search 32. we will examine sense, grudging in a “common realistic fashion without a discourage police will tend to officers from negative attitude that (1993), 204, 210-211, seeking warrants.” State v. Rinehart Mont. (citation omitted). 1219, 1223 P.2d in reviewing presented After the facts the search warrant sense, fashion, in conclude that a common realistic justifications for his provided Detective Richardson reasonable connected to the crime of arson would be conclusion to the of 46- requirements found at the Markses’ residence 5-221(2), unquestionably MCA. A sense establishes common evaluation origin relating to the of a fire probability a fair that evidence Similarly, the fire occurred. a common sense will be found where probability sought Detective review establishes a fair items connected the crime of arson. Richardson’s warrant instance, and financial documents tend to establish For insurance See arson. or not individual had a motive commit whether an Waymire (1990), 131, 788 Emcasco Insurance Co. P.2d Thus, training Richardson’s giving 1357. credence it him to conclude that such items experience, was reasonable for Determining arson. otherwise would be connected to offense of long negate and contradict would a common sense evaluation magistrate’s precedent affording great deference to a established *7 Additionally, such a cause exists. probable determination that seeking discourage to law enforcement from would tend determination warrants. Furthermore, that the we conclude
¶20 and items to be seized place the to be searched the particularly stated hold that 46-5-221(3)-(4), Consequently, we in accordance with MCA. § probable that sufficient properly the District Court concluded 46-5-221, MCA, to the requirements established was the issuance of a search warrant. support Affirmed. GRAY, LEAPHART, and COTTER CHIEF JUSTICE JUSTICES RICE concur. dissenting.
JUSTICE TRIEWEILER majority opinion. I dissent from may be that a search warrant 46-5-221, MCA, provides Section under oath that facts, sets forth applicant issued when an has that offense probable cause believe sufficient to establish may the offense that evidence connected with committed and been describe under oath what requires applicant found. It also are consistent with what we statutory requirements to be seized. These cause for issuance of a probable to establish required have held 287, 22, 291 MT Mont. Kuneff, See State v. search warrant. II, 11 of the Montana 22, 970 P.2d 22. Article Section issuance of a search warrant without prohibits Constitution cause. for a warrant to search the home of the The submitted Marks,
Defendants, Tony provided and Theresa no to establish provided had committed. It no probable cause that a crime been cause that evidence of a crime would be found The any specificity the items to be seized. and it did not describe with majority approve application places in fact that would viability search and seizure case prior serious doubt the continued majority’s protection of Montanans law and the commitment searches and seizures. from unreasonable majority following allegations forth the from the sets
application as evidence that a crime had been committed: investigate Fire Ted started to
Deputy Marshal Warrant house, he origin cause and of the fire and when he entered the clothing noticed that the house did not have a lot furniture appeared and it to him that some of the contents of closets He also that had been removed before the fire. noticed house damage, inconsistent heavy had fire/smoke which was house being gone only twenty for the home owners statement with minutes. Marks, Tony at which Richardson then talked with Billings police as a detective
time he identified himself the Fire Marshall and told him that member of the Arson Team [sic] and that arson thought suspicious the fire [sic] was you think Marks stated “Do investigation going place. to take I and and He told that did not know my I torched own house”. was allowing the team sign he a consent to search requested [sic] origin of the fire for to this cause to search his house *8 any possible arson. sign search, the Tony Marks was reluctant consent to talked with his brother Jim Marks who was also at the fire scene. attorney Jim Marks called an and talked to him about the consent end, Tony sign In the & Theresa did a consent to search. both however, search, Tony this not used consent was as Marks was search, requesting present during in the house and still was reluctant to have Police Officers inside his house. had The None of these facts indicate that crime been committed. clothing by itself fact that the house did not have a lot furniture or significant compared was not unless to the normal contents of the house. There was no foundation to that the furniture and show different clothing any in the house at the time of the fire was than normally present. would have been The fact that Marks from her Theresa estimated her absence damage greater
home at 20 minutes and that the amount of done was absolutely nothing. than could have occurred in 20 minutes means long nothing fire There is in the question how burned. affidavit fire’s Theresa Marks suppression to indicate when in the course of the returned to her home. Finally, nothing atypical Tony there Marks’ reaction to about investigated suggestion being that the fire in his home was for any way incriminating person is it in for a to decline to
arson. Nor by police. person have his or her home searched A has as much right right to invoke his to be free from unreasonable searches and right seizures as he or she does to his to remain silent. invoke rights meaningless. Otherwise the Nothing set forth in the for a search warrant amounts suspicion intentionally
to more than a mere that the fire was started. However, suspicion a mere is not sufficient to establish of a crime. In State v. Lott (1995), 195, 199, 900 P.2d stated that: officer, suspicion police “Amere affirmance of belief or absent circumstances, any underlying facts or does not establish the affiant’s cause for the issuance of a search warrant.” Here “may appellant’s that vehicles be used” to distribute statement by any underlying or circumstances. drugs unsupported omitted.] [Citation any facts in for search warrant Nor are there 46-5-221(2), MCA, satisfy requirement at
which would maybe that evidence found on probable cause be established to believe Richardson made Detective Blake to be searched. premises conclusory following statement: personal located certain items of and are now
there have been as particularly and are described are EVIDENCE property which being: *9 INCLUDE, BUT NOT THE FIRE TO & ORIGIN OF
CAUSE LIQUID LIQUIDS, IGNITABLE LIMITED TO IGNITABLE DEVICES, MATCHES, LIGHTERS, CONTAINERS, TIMING EQUIPMENT, TORCHES, CIGARETTES, ELECTRICAL GAS EQUIPMENT, INSURANCE & FINANCIAL MECHANICAL RECORDS, OF ITEMS DOCUMENTS, PHONE EVIDENCE THE FIRE. FROM THE PRIOR TO BEING REMOVED in the affidavit to However, not one additional fact was set forth from opinion. apparent Richardson at this It is establish how arrived set forth. At the time testimony why Richardson’s no further facts were the fire had application, he he had no idea how prepared that Therefore, started. he had no idea whether the items listed in application would found. be Gray (1970), 510, 473 P.2d Application illegally on
held that a search warrant had been obtained when based conclusory the same kind of statements. We held that: Where, merely as here the affiant states the conclusion that the knowledge designated affiant “has and does believe” burglary premises articles involved in the are located on the to be This has probable searched it is insufficient cause. and statutes long been held true under the Montana Constitution warrants, enabling the relating to the issuance of search judicial the existence of magistrate to make a determination of for the being required. upon cause Affidavits relied federal and state prosecutions issuance of search warrants both impartial contain sufficient facts an commissioner must to enable magistrate or to determine whether cause exists under given, only are the Fourth Amendment. Here no facts whatever knowledge affiant’s ultimate conclusions that he has actual designated upon articles are located believes that premises [Citations omitted.] searched. at
Application Gray,
majority every platitude recites out of context cited in the State’s brief justify any which would search without facts. You can tell there are support majority no facts to the search warrant in this case when the eight opinion-six has to refer to “common sense” times in its times in paragraphs majority’s the last two out of three alone. The new mantra is “common sense.” good. Common importantly, sense Facts are better. More statutorily constitutionally required. Here none were offered.
Furthermore, not all of conclusions Detective Blake Richardson’s Therefore, demonstrate “common I sense.” would reverse District denying suppress Court’s order the Defendants’ motion to seized to the search warrant and I dissent from the majority’s refusal do so.
JUSTICE NELSON dissents. part, dissenting For the most I concur in Justice Trieweiler’s However, opinion. agree majority opinion I do not casts doubt prior jurisprudence either on this Court’s search and seizure or on our protections collective commitment to the broader afforded Montanans II, from and seizures under Article Sections 10 unreasonable searches majority 11 of I simply this State’s Constitution. believe that *10 wrong has come to the conclusion as a matter of law on the issue before us. establishing Specifically, purportedly if one reviews the affidavit warrant, pertinent
the basis for the issuance of the search Trieweiler, apparent provisions by of which are set out Justice what is long suspicion on is that Detective Richardson’s short-indeed, too short-on cause. There are no facts which fire; supposedly caused or caused the there are no establish what any typical causes of home fires were which establish that problems, spontaneous problems, eliminated-electrical mechanical combustion, materials, failure; or there smoking appliance or misuse purposely indicate a fire caused for financial are no facts which was to harm gain; there are no facts lead to a conclusion of a fire set which crime; and there are no facts which another or to conceal some other short, patterns. there point suspect to the use of accelerants bum 45-6-103, MCA. point are no facts to a fire set violation of § which not sufficient under suspected Richardson arson is That Detective go fishing an a constitutionally He not entitled law. satisfy suspicions way one through someone’s home to his expedition Indeed, practice. condemned that long ago specifically or the other. (1924), 202, 209, 224 ex Thibodeau v. District Court 70 Mont. State rel.
181 (“the are not intended statutes search and seizure 866, 869 P. possibility homes of citizens on into the fishing expeditions permit disclosed”). here Yet, issued warrant may of crime that evidence that-satisfy his precisely do Richardson to allowed for the Markses’ home fishing expedition into suspicions with a crime. evidence of 176, (1997), 250, P.2d Siegal 281 Mont. 934 stated in State v. We 287, 291 MT Mont. by Kuneff, 1998 grounds on other State
overruled 556, 474, P.2d that: officer, police suspicion of belief or
[a] mere affirmance
circumstances, does not establish
any underlying facts or
absent
of a search warrant.
cause for the issuance
(1982),
283,
(citing
P.2d at 195
State v. Isom
Siegal,
the evidence on the of the tainted investigative subpoenas which were issued basis Wong under the search Sun v. United evidence obtained warrant. 471, 83 407, 9 441; L.Ed.2d State v. Dolan (1963), 371 U.S. S.Ct. States (1997), P.2d 436. failure to do so. I dissent from our