*1
STATE OF MONTANA,
Respondent,
Plaintiff and
v.
MOSLEY, III,
CHARLES FRANCIS
Appellant.
Defendant and
No. 92-379.
January
Submitted on Briefs
1993.
Decided June
St.Rep
For Defendant and James Park Missoula. Racicot, Attorney General, For Plaintiff' and Marc Respondent: Helena, Schmidt, General, Helena, Carol Attorney E. Assistant Deschamps III, L. County Attorney, Missoula; Robert Karen Town- send, County Attorney, Deputy Missoula.
JUSTICE WEBER delivered the Opinion of the Court. Court, an appeal
This is from the Fourth Judicial District Missoula County, denying suppress defendant’s motion to evidence. We affirm.
We consider the appeal: issues on 1. Did the in denying District Court err defendant’s motion to excise certain information from the for search warrant?
2. Did the District err in determining Court that the warrant set forth sufficient facts to establish cause? 14, 1991,
On June agent confidential informant contacted John (Reed) Reed of the Montana Investigation Criminal Bureau and stated (Mosley) may maintaining marijuana that Charles F. III be grow operation Lyon at his residence on Creek Road near Missoula. This informant had previously supplied reliable information. contact,
A week following this Detective Tom Lewis of Missoula Department Agent Brady Sheriff’s Mark from Montana Investigation drive-by Mosley’s Criminal Bureau conducted a quonset which was metal hut. Two vehicles were located hut; quonset near the a license search indicated that belonged one Mosley. Charles and the other Merita drive-by On June Reed conducted another and observed *4 thereafter, Shortly July the same two vehicles. on Reed had contact with a citizen informant. The informant stated that in late early Mosley fall or of had an winter burned “unknown” sub- property; marijuana. stance on his the substance smelled like Accord- informant, marijuana ing to the he knew what smelled like from The informant also stated that an unknown personal experience. Mosley’s daily. Mosley If not home up male showed was arrived, man he would wait for arrival. when unknown 2, 1991, On Detective Lewis searched the narcotics intelli- Mosley. gence any activity by files for former informa- tion from that file was included in the for search warrant: 9, 1981, City Department 1. On November the Missoula Police received information from a confidential informant that the Defen- [Mosley] employed Valleys Alley dant in Bowling was Five selling dangerous drugs people Missoula and was to other at work. gotten This informant stated that most ofthe barmaids supposed hooked on cocaine. The transactions were to have oc- curred after work van. 17, 1982, Mosley
2. On charged November was arrested and with felony During booking process, theft. a hash and pipe three zip-lockbaggies [Mosley]. were found on Defendant Defendant was February felony possession convicted on for theft and of dangerous drugs. 13, 1984,
3. March On Detective Phil of Missoula Williamson County Department by Sheriff’s was contacted another confiden- tial informant [Mosley] selling drugs who stated Defendant from his residence. Informant stated he had observed traffic out of Defendant’s residence for some time stayed and the visitor only period for a short of time. Informant stated Defendant drove employed a van and was at Westside Lanes. Defendant was then probation possession on dangerous drugs. of Informant stated selling drugs that he also felt that Defendant was place at his of employment. 29, 1985, October Detective Joe Servel of the Missoula
Sheriff’s Office met with one of the owners Westside Lanes Bowling Alley. employee That individual stated that an of the alley bowling selling drugs had told him Chuck while at work.
Also included the warrant is a statement estab- growth marijuana lishing plants that indoor can be detected applicable powers description search of bills. The warrant included a cyclic why wattage pattern explanation showed — pattern marijuana requires drying air circulation heaters for marijuana plants.
114 10, 1991, original the September states that on
The also warrant mysteri- the again with the observation police informant called Mosley residence. Police motorcycle again at the man on the ous of registration noted the number Mosley residence and went to the records, police deter- motorcycle. Upon appropriate a check of the police A of by Campbell. a Thomas search cycle was owned mined drug in engaged previous had records determined that file also indicated that investigation The narcotics related activities. 15,1991 drug different residence on on a Campbell’s search of a marijuana plants drug and a number of charge, produced related paraphernalia. Mosley erroneously reported that Charles also
The warrant reality incident in Missoula. This incident trespassing a reported had the same name. father who involved Mosley Lyon Creek Road was A warrant to search District Court. the Fourth Judicial September issued on residence: subsequent search disclosed containing marijuana, garbage bag a black paper bags three of vinyl drug marijuana, parapher- of a case with pound three-fourths (two scale, marijuana, nalia, baggies with zip-lock a counter balance mushrooms, seeds), on marijuana baggie a of two books and one with (a fan, cultivation, long pipes, equipment spray bot- marijuana two boxes), tles, plant light timed grow lights, extension cord with three Arms handgun, Olympic and an a Smith and Wesson semi-automatic rifle. semi-automatic 25, 1991, Mosley charged with one count of September
On dangerous drugs pursuant intent to sell possession of with criminal 45-9-103, MCA, posses- count of criminal felony and one to statute § statute, 45- pursuant to misdemeanor drug paraphernalia § sion of counts, 10-103, Mosley guilty to both and filed a motion pled MCA. as a motion to disclose the physical evidence as well suppress to hearing A suppression informants. identities of certain confidential 24, 1991, the District 1991. On December was held December order, denying and both motions. opinion issued its Court the court a for reconsideration of Mosley subsequently filed motion Valley 830 P.2d to State v. pursuant order light its earlier order 30. The court did reconsider St.Rep. Valley decision did not dictate concluded that the Valley reasoning and ruling from the court. a different attorney county for Missoula deputy April
On two counts of charging with amended information filed an MCA, 45-9-103, to drugs pursuant dangerous § of possession criminal pursuant drug paraphernalia of possession of criminal one count plea his day, Mosley reversed 45-10-103, same MCA. On the to § guilty to two plea of he entered agreement wherein signed plea count of drugs and one dangerous of possession criminal counts of However, of this part as drug paraphernalia. of possession criminal Court’s appeal the District right his preserved agreement, motions, suppress including the motion pretrial his denial of of suspended sentence agreed to recommend The State evidence. drugs and dangerous felony possession years on each count five paraphernalia. possession count of the misdemeanor six months on *6 1992, 15, to two sentenced on June The District Court term at six month year suspended terms and one five suspended 22,1992, Mosley filed On June Lodge. Prison at Deer Montana State appeal. this
I
deny the motion to excise certain
properly
the District Court
Did
application?
from the warrant
information
any informa-
required to excise
argues that the court was
is a
application
if the information
included
the warrant
tion
falsehood,
disregard
in reckless
for the
or
included
was
deliberate
intentionally made false
is that authorities
truth.
contention
truth
disregard for
made statements with reckless
statements or
Therefore, Mosley
for a search warrant.
writing
application
the
when
application:
the
should be excised from
argues that the
facts
1)
dated November
anonymous informants
information from
(the
1984,
29,
is stale and
13,
1985
May
and November
2)
“long
a
Thomas
uncorroborated);
the statement
3)
4,
offenses”;
trespassing
August
the
history
drug-related
4)
merely
incident;
cyclic pattern of his electric bill which
argues that the
Mosley also
conclusory
by
statement
the Officer.
a
necessary
a
ventilation
the material
fact that
omitted
residence.
not observable
system mate-
required to excise
the court is
argues that before
The State
preliminary
warrant, Mosley must make
substantial
rial from a
intentionally
mak-
when
knowingly
acted
or
showing that the State
disregard
with reckless
included statements
statement or
ing a false
this,
the State and
according to
Mosley has not done
the truth.
for
to be excised.
required
is not
complains
he
information of which
Supreme
The United States
Court has
that truth
determined
fulness of factual statements made
for a search
154,
challenged.
warrant can
v.
be
Franks Delaware
438 U.S.
2674,
Sykes (1983),
98 S.Ct.
made
provide
conclusory
the defendant must
than
more
Franks,
statements.
Mosley
argues
concerning anonymous
first
that information
9,1981,
13,1984
tips
dated November
March
and November
they
should have been excised because
are stale or uncorroborated.
pivotal
Of
concern to
claim that these earlier incidents be
excised is his total lack of evidence that these
in
incidents were
fact
intentionally
false or were
included to mislead the court. A false
affidavit statement
is one
magistrate [or court]
which misleads the
believing
into
the existence of certain
person’s
facts which enter a
(Iowa
thought processes
evaluating
in
probable cause. State v. Groff
1982),
affidavits,
Mosley argues that the characterization ofThomas Campbell’s also criminal record should have excised. stated in appli- been Lewis Campbell long history drug-related cation that had a of offenses argues the Missoula area. The State that it used the word “offenses” activity to mean criminal suspected involving drugs. The court con- activity strued the word “offenses” to mean all known criminal as well as convictions. already
We have stated that the word “offense” in an affidavit support of a search warrant means a violation of laws of Montana political or its Kelly subdivisions. State v.
668 P.2d for search the word definite, law, “offense” is to be construed as a known violation of the alleged not an suspected drug-related violation or activity. Lewis testified that history he meant that had a long suspicion of drug-related activity. Lewis used erroneously. the word “offense” important fact is that a current Campbell’s search of residence in up drugs 1991 turned and drug equip related ment. The evidence found in that search is concrete and current and capable standing on its own without the Camp statement of past. again bell’s Once Mosley we conclude that did present evidence to show that Lewis included the information with an inten We, therefore, tion to mislead the court. conclude that there is no basis to strike the reference concerning Campbell.
Mosley further contends that the trespassing incident which
involved his father and not himself should have been excised from
the application.
argues
The State
this incident was innocent
Mosley
error
provide
and that
failed to
evidence that
the State
intentionally included this
Allega
information to mislead the court.
of negligence
tions
or innocent
are
mistake
insufficient to excise the
alleged
Franks,
false information.
statements made Lewis must be excised because are conclusory according statements to State v. Wilson 317, 1346, Further, 837 P.2d St.Rep. according Mosley, 49 give Lewis did not his making analyses. credentials for such have stated that: Sufficient information presented magistrate must be to the cause; allow official to determine his action cannot be a mere ratification of the bare conclusions of In others. order to ensure that such magistrate’s duty an abdication of the does not occur, courts conscientiously must continue to review the suffi- ciency of affidavits on which warrants are issued. Mont,
Wilson,
319,
254
at
No data from the record any was included in the nor concerning experience analyzing power detective’s usage records. Mont,
Wilson, 254 837 P.2d St.Rep. 49 at 845. In one respect, the situation we quite have before us is different. expressly cyclic Detective Lewis pattern stated the reflected Mosley’selectrical use: power
The January records reflect that 1988 the electrical consumption was 859 kilowatts and in August 1988 the electrical consumption was 1121 In comparison kilowatts. this the electrical consumption higher January. warmer months was than in January consumption 1989 the electrical was 864 kilowatts August year whereas consumption same kilowatts. following year, January 1990, The the electrical consumption was 1,038 consumption during August kilowatts while the was 928 The consumption kilowatts. current electrical at the resi- 1,179 higher dence of is consumption kilowatts than the electrical January year. of the same consumption electrical at this residence also indicates a cyclic pattern commonly consistent with seen with indoor marijuana grow operations. through May From patterns several such are evident. analyzing power experience his thing provide he did not
The one authority did he Although position he stated his usage records. expertise possessed he which would enable technical indicate what *9 facts. conclude that because Officer interpret the above We him to any for application not in his search warrant did include Lewis analyzing power usage experience his records concerning information met the test. he has not Wilson
However, presented not evidence to indicate that this Mosley has intentionally Therefore, we knowingly or made. con- omission was power usage to excise facts from the no reason exists the clude However, a because sufficient foundation was set application. forth, records in disregard power will the information of electrical we analysis Issue our further under II.
Mosley intentionally that the argues also Lewis omitted fact system Mosley’s he had not seen a ventilation residence. that marijuana According Mosley, is material such omission because adequate ventilation. The State contends the information requires necessity a agree. was not for warrant to issue. We The omission Mosley complains of is to an of a that immaterial issuance warrant given application. the other included in the warrant finally allegations conclude that did not his hearing by a of the evidence. suppression preponderance the His showing any knowingly that false or burden statement inten- made, tionally disregard or made with the truth reckless for has Therefore, met. we hold that the District Court did not err not been Mosley’s from denying motion to excise certain information application. warrant
II determining Did the District Court err for facts cause? warrant set forth sufficient to establish physical motion to all suppress The District Court denied for search evidence seized at his because issuing established cause. In the search warrant applica- on the from the District Court relied incidents search warrant: tion for Agent a confidential informant contacted Reed
1. On June grow may maintaining marijuana be and stated defendant his operation at residence. 2, July
2. On 1991 a concerned citizen noted burned substance an outside barrel which smelled marijuana like burning. 2, 1991, July
3. On Deputy sheriff’s Tom Lewis searched the Intelligence Narcotics files which revealed involving drugs incidents 9, 1981, 17, on November 13, November March October 1985. 25, 1991,
4. On
Detective Lewis applied for and received a
subpoena
power
records. Detective Lewis stated that the
cyclic
electricity
records established a
use of
consistent with an inside
marijuana grow.
—
4, 1991,
August
trespassing incident in Missoula.
10, 1991,
September
original informant contacted Reed about
mysterious motorcycle
day
rider. The next
the owner
motorcy
cle was
identified as Thomas
who himself
long drug
has a
history. The court stated
taking
that it was
a common sense approach
required
State v.
Using practical, common sense approach required under Gates only and Crowder and looking to the four Application comers ofthe concludes, this Court taking that all of together the items and applying ‘totality test, of the circumstances’ this Court has a ‘substantial probable basis’ to conclude that cause existed. Opinion, 24, Order and December 1991.
This Court’s function on appeal from the District Court’s
review of a search warrant
is not to review de novo the court’s
determination
probable
justified
that
cause
issuance of a search
warrant; rather, the
presume
Court must
the lower
properly
court
issued a search warrant
subjecting
after
the application
“totality
to a
of the
(1990),
circumstances” test. State v.
176,
Baldwin
242 Mont.
duty
We conclude that the court had a substantial basis to deter conclusion, mine that cause existed. In arriving at this as stated, previously considering we are not the statements relative to power electrical records. Probable cause to issue a search warrant may confidential tip be based on a from a informant. State v. Crain
121
Here,
(1986),
167,
application
223 Mont.
the State
facie
on
criminal
Mosley’spart;
merely
the State
a probability
to show
of criminal
activity Mosley’s
(1988),
on
premises. See State v. Sundberg
Mont.
The application a substantial basis such a probability activity occurring of criminal on property. hold that the District Court did not err determining that the for search warrant set forth sufficient facts to establish probable cause.
Affirmed. CHIEF JUSTICE HARRISON, TURNAGE and JUSTICES McDonough concur. JUSTICE specially concurring TRIEWEILER part dissenting in part.
I concur with majority’s decision affirm the District Court. However, I disagree with its reasons. I
Specifically, Supreme would not follow the U.S. Court’s decision in Franks v. Delaware 438 U.S. 98 S. Ct. L. Ed. However, excising 2d I inadequate conclude after the false or from in support the affidavit ofthe State’s prob- search there sufficient information to establish *11 cause for the of a pursuant able issuance search warrant to the totality (1985), of the circumstances test in State v. adopted Jensen 217 Mont. 45. P.2d Franks, Supreme
In the Court that Fourth U.S. decided under the Constitution, Amendment to United States false the information support in an in search contained affidavit of an for a need warrant not be excised unless the defendant could establish included, the it when information was the affiant knew that was The Montana for the truth. disregard or had a reckless untruthful this to the citizens of independent right an provides Constitution seizures. It also searches and unreasonable to be free from State probable cause. issue without warrant shall that no search provides does not a search warrant support provided information False the it make what does cause. What difference probable provide information is submitted? the false of mind is when applicant’s state appli- support Furthermore, provided if false information has privacy warrant, person does the whose how for a search cation person the who the state of mind of illegally violated been information? the provided to be free Constitution found in the Montana right
Applying seizures, hold that in deter- I searches and would unreasonable from of a search for the issuance cause there was mining whether should be in the search warrant included false information by a considered remaining information only the disregarded and reviewing court. decisions, I excise would reasons, prior on our and based
For these filed the State affidavit information from the in this case: a search warrant application for support of its of the Missoula contained in the files The information 1. (with record exception of defendant’s Department Sheriff’s convictions) inad- stale and that the information was for the reason (1992), 252 Mont. Valley in State v. to our decision pursuant missible P.2d 1255. defendant had contacted alleging that The information 2. reason property for the trespass to his about department sheriff’s information false. was that such long history of had a that Thomas allegation The false. I would allow allegation because
drug-related offenses Campbell’s found in illegal drugs were allegation that in 1991. there power usage because defendant’s The information about any affidavit that it had in the for the conclusion no foundation deci- therefore, pursuant to our was, inadmissible
significance, and
For these I would affirm the of the District Court. joins foregoing
JUSTICE GRAY in the concurrence and dissent. HUNT, dissenting. JUSTICE
I dissent and would reverse the conviction of the defendant because I do not believe either the United States Constitution or the Consti- contemplated obtaining tution of the State of Montana ever a warrant through the use of false information in the affidavit. I would reverse.