*1
MONTANA,
STATE
OF
Respondent,
Plaintiff
Appellant.
PETERSON,
BAILEY
No. 86-92.
Submitted
Briefs Feb.
1987.
July
Decided
1987.
Rehearing
Sept.
Denied
Charles Helena, Gen., Roberts, Atty. Greely, Gen., Atty. R. Asst. Mike Joe Bank, respondent. Nelson, Atty., plaintiff for and C. Co. Cut James Opinion of Court. delivered the MR. JUSTICE HARRISON in the District appeal jury is an from a conviction entered This County. District, De- for Glacier of the Ninth Judicial Court offenses and narcotics-related fendant was tried convicted of trial. appeals. now remand for new We reverse and review, our for our because of Although defendant raises five issues necessary only holding it is address three: to (1) to motion err it denied defendant’s Did the District Court when suppress?
(2) of tele- it Did the District err when admitted Court his allegedly occurring defendant and between supplier?
(3) in- jury it denied defendant’s err when District Court of a lesser included offense? struction Montana, Bank, 6, 1985, in Cut April police department On large ship- a anonymous tip Crimestoppers received an from day via “pot” Cut Bank later that ment of was due to arrive in was be parcel arriving Texas and to bus. The was said to be from men, picked up by any was said of three one whom defendant. Wevley tip given Richard from was to Officer
The information Wevley to the bus Department. Officer went of the Cut Bank Police depot to arrive one was scheduled where he learned that bus depot phoned the bus the defendant had hour. He also learned that for him. previous day to see if a arrived attorney prepare an county Wevley then met with the Officer parcel and search for a search warrant to seize Crimestoppers. anonymous tip from Officer subject was L. Burns and William Wevley appeared Justice of the Peace before of the under oath. Justice signed search warrant for Wevley directing Peace a Burns issued search warrant Officer serve the warrant. Wevley depot returned as the defendant was bus
signing receipt parcel. possession a for Defendant took placed parked depot. cel it his truck outside the At that point, Wevley approached the defendant and served the search Wevley depot Wevley rant. and the defendant returned to the where opened twenty-five pound, nine bun- found ounce Wevley marijuana. placed dle of trans- defendant under arrest and ported police him to the station. his Miranda Wevley rights
At the station read and the declined, him asked if he wished to make a statement. Defendant stating get making that he back could shot a statement. mention, however, recently He did picked up that he had another question. similar to the one in charged felonies, possession dangerous with two drugs possession dangerous drugs He with intent sell. plead July and stood trial He was convicted on appeals. each count and now
Did the District Court err when it denied defendant’s motion to suppress? challenges validity pursu- first
Defendant the of the search warrant ant to which Wevley Officer seized and searched the of mari- juana. pretrial suppress filed a motion to the seized mari- juana grounds on the constitutionally the warrant was defective. The District appeal, Court denied this motion. On defend- ant sup- contends the in denying District Court erred his motion to — press first, for unsupported by prob- two reasons the warrant was cause, second, specifically able it failed to describe what be seized. 46-5-201, MCA, defines a search warrant:
“A ‘search warrant’ is an order:
“(1) in writing;
“(2) state; in name the
“(3) signed by judge; a
“(4) particularly describing person thing, place, the to be seized; instruments, articles, things searched and the to be “(5) per- for peace directed to a officer him search commanding property bring sonal judge.” it before the and hold application We have the for the search warrant reviewed issuing cause that it established for warrant. particularity in The warrant does with this case not describe package article to be The warrant authorizes the seizure of seized. described,” but is not an parcel and the there “contraband above “pot” de- large shipment dangerous drugs or “above described” application. scribed as in the warrant mentioned alone, Standing invalid for failure to de- the warrant would be its particularity to be seized. If the warrant scribe contraband made the officer had been directed to an officer other than who However, in signed application, it would be invalid. case, only signed application, ade- Wevley Officer “pot,” but quately package containing described the contraband as a seized he was also the officer who served the warrant and same pot application. in the mentioned When the for the warrant and the search when, case, application is together rant are read as signed by directed named the warrant as officer officer personally such ser- make service of the warrant and did make who requirement vice, satisfy documents in combination ticularly thing describing the to be seized. trip Wevley fishing the search go forth did not in his particular thing for
warrant. He searched identified pot. as a used the warrant to search He District Court particular thing, and that is what he seized. The suppress denying did not err defendant’s motion to seized. telephone err when it admitted evidence District Court supplier? his allegedly occurring between
calls telephone from vari- The District Court admitted evidence phone numbers ous in Montana to Texas. numbers brother, mother, a busi- defendant’s Montana were of defendant’s calls. made the ness and a that defendant ranch. The State asserted *4 calls Texas to phone from presented The State also evidence of Montana. of the presented evidence to link defendant
No proper that defendant The State an inference is calls. contends by phone calls. shipment knowledge of as evidenced 402, M.R.Evid., Rule is admissible. states all relevant evidence 401, M.R.Evid., Rule defines relevant evidence: having tendency make “Relevant means evidence consequence the existence of fact that is determination of probable of the more with- action less than it would be out the evidence ...”
In State v. Smith (1983), 203 Mont. 661 P.2d St.Rep. knowledge may proven by be “direct we held that by acts, declarations, evidence or evidence of the ac- or conduct of jury may cused from knowledge.” infer reversing grounds, Because we are we case on other need not However, reach issue. proper we will that a foundation note developed be telephone must before can be introduction allowed. jury District Court err when it denied defendant’s instruc-
tion of a lesser included offense? charged possession
Defendant was danger- the offenses of II) (Count drugs 45-9-102, MCA, ous pos- violation Section I) dangerous (Count drugs session of with intent to sell in violation 45-9-103, of Section MCA. Both Count and Count II were based on possession the same of contraband. jury counts,
The found defendant on both and the court sen- tenced defendant on both counts. may
The charge State defendant with more than offense when one may the same transaction establish the commission of more than offense, 46-11-502, However, one Section MCA.
be convicted of one offense if that offense is included another. 46-11-502(1), Section MCA. 46-ll-501(2)(a), MCA,
Section provides: proof “An offense is an ‘included offense’ when it is established required the same or than less all the facts the com- establish charged.” mission of offense possession dangerous drugs offense of criminal in sell, 45-9-103, MCA,
tent to requires Section that each relevant ele 45-9-102, ment possession dangerous drugs, of criminal Section MCA, proven along with the additional element “intent 45-9-102, MCA, sell.” We hold that Section is an included offense of 45-9-103, MCA. *5 508 by proposed
Defendant’s 5 was refused instruction Number provided: District Court. It De- you beyond
“If are satisfied a reasonable doubt that not however, guilty charged, may, be found fendant is of the offense he offense, guilty necessarily which is of lesser the commission of in estab- if the is sufficient to charged, included the offense evidence beyond guilt lish his of lesser a reasonable doubt. such offense Sell, II “The offense Possession Intent Count with of to necessarily charged, the lesser offense the Defendant is includes Dangerous Drugs, Possession of Count I. stated in guilty of either the offense
“You find II, both, I of either Count or or not Count but offense.” such, required give is an
If the is the District Court evidence (Mont. Young State v. on lesser included offense. instruction 1474, 1983), 19,] 1478; St.Rep. 669 P.2d 40 Mont. [206 (Mont. Gopher 1981), _,] State [_Mont. P.2d 633 may only St.Rep. be convicted “[Defendant] is greatest which there no reasonable included offense about 46-16-602, Section doubt.” MCA. it de- reversible error when
We hold District Court committed lesser offense. nied defendant’s instruction of a included Reversed remanded for new trial. WEBER,
MR. CHIEF MR. JUSTICES JUSTICE TURNAGE and SHEEHY, concur. GULBRANDSON and McDONOUGH part: HUNT, part dissenting in concurring in
MR. JUSTICE majority’s part part. I I .in concur with the concur and dissent in- on issue the lesser conclusion this case be remanded that unsup- majority’s part cluded offense. dissent because by ported protections into afforded intrusion unwarranted Arti- Constitution the Fourth Amendment the United States II, of Montana. Section 11 the Constitution the State cle shall no warrant is- clearly provides The Fourth Amendment searched, place to be “particularly describing the sue without II, Similarly, Article persons things or seized.” requires of the Montana Constitution that: person thing any place, or warrant to search seize “[n]o person place be searched or describing issue shall without . . .” thing to be seized mandates, Despite following these constitutional rant was issued: WEVLEY,
“THE OF STATE MONTANA TO RICHARD CUT BANK CITY POLICE OFFICER:
“A application having sworn been made before me Richard Wevley, City Police, Cut Bank at that he reason believe that Bank, Treasure State News west main in a street Cut Mt. following, wit: addressed to or all of the Baley . . . Peterson [sic]
“That I am satisfied that there is cause to believe property, is and contraband above describded [sic] *6 upon package parcel the at said Treasure State News cel described above.
“You hereby are commanded to serve this warrant and to search the described Treasure State News and the above described evidence, for the property specified contraband and and if property, the found, you evidence and contraband is to seize it are contraband, along any property, with other and evidence of crimes you may which find . . .”
This warrant particularity fails to describe with the contraband to Nevertheless, today’s be seized. ruling, majority under the allows the State to use in its pursuant case-in-chief evidence an obtained admittedly only defective warrant. “exception” Not does to the this particularity requirement any basis, represents lack it constitutional policy. bad majority
The seems to holding base its on the combination of two application factors. The is first the search warrant described particularity second, that which was to be seized. And same of- ficer who submitted the search warrant executed search. appealing
However majority’s holding appears glance, first at upon quickly apparent holding upon review it becomes this is based something majority upon other than law. The relies the fact Wevley’s application particu- warrant set forth this larity sought authority that for which he is but to search. This true itself, application, irrelevant. It is the search which warrant provides authority it ar- to conduct search. Nowhere has been gued that there exists was to be indication that incorporated into the warrant. Without a valid authorization within 510 warrant, corners of who conducted four the search officer authority
this search was
to do so.
without constitutional
majority remarkably
to sat
these two documents
Yet
combines
isfy
requirement
particularity.
simply
There is
neither
today,
thought
it
legal
nor
Before
factual
basis for
conclusion.
express
requirement
particularity
an
well
established that the
Sales,
Inc. v.
Lo-Ji
command,
technicality.
constitutional
not a
mere
(1979),
319,
2319,
920;
Stan
New York
442
60 L.Ed.2d
U.S.
99 S.Ct.
506,
v. Texas
(1965),
476,
431. For
13 L.Ed.2d
379 U.S.
85 S.Ct.
ford
928,
issue,
an
see
U.S.
104
excellent discussion of this entire
468
(Mr.
dissenting to
S.Ct.
For the *7 With protections convicting criminals. constitutional to the lure of authority, absolutely majority cre- scant discussion no to the exception Fourth Amendment ated a remarkable to the II, 11 of the Mon- and to Article United States Constitution constitu- majority ignores tana Constitution. The the fundamental importance what is at stake here. tional