Lead Opinion
delivered the Opinion of the Court.
¶ 1 John Reesman (Reesman) appeals from two orders issued by the Eighteenth Judicial District Court, Gallatin County, which denied his motion to suppress evidence, and denied his motion to dismiss based on destruction of evidence.
¶2 We reverse and remand for further proceedings consistent with this opinion.
¶3 Reesman raises the following issues on appeal:
1. Did the District Court err when it denied Reesman’s motion to suppress evidence seized as the result of an illegal search?
2. Did the District Court err when it denied Reesman’s motion to dismiss the charges because the State destroyed evidence?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 During the search of a trailer home located in Big Sky, Montana, in which Gallatin County Sheriff’s officers believed marijuana was growing in a bedroom closet, more than 100 “hits” of LSD were found in another bedroom where the Appellant Reesman lived. The search was conducted pursuant to a search warrant allegedly validated by the statements of a confidential informant and corroborated by information received from an “anonymous citizen.”
¶5 Reesman’s motion to suppress the evidence gathered in his bedroom as well as his testimony to the officers was heard by the District
¶6 On November 28, 1995, a confidential informant provided Gallatin County Detective Don Hanson (Hanson) with first-hand information concerning a variety of illegal drug-related activity at a trailer home located in Big Sky, Montana. Hanson was assigned at the time to the Missouri River Drug Task Force. The warrant application did not indicate whether the informant had provided law enforcement officers with accurate information regarding criminal activity in the past.
¶7 The informant stated that a person named Brent Hoge, or “Beau Dylan Hogge” answered the door, and escorted her to his bedroom located at the north end of the trailer. There, he allegedly revealed marijuana growing in a closet, as well as recently harvested “buds.” According to the informant, he also showed her spore-like growth in a styrofoam cup, which he claimed were mushrooms that produce the illegal hallucinogen, psilocybin. These described events allegedly took place, according to the informant, on the weekend of October 28,1995. The informant did not give information that any other person was conducting illegal activity of any type in the trailer, and she did not mention Reesman by name, or indicate that he was living in the trailer.
¶8 Hanson also testified that an “anonymous citizen,” who had provided reliable information in the past, told him that the marijuana growing operation had existed at that location for approximately one year. This information was included in the application. The application omitted, however, further detail as to whether this informant’s information came from personal observation, or under what context law enforcement personnel had received the prior rehable information.
¶9 According to testimony, neither Hanson nor any other law enforcement officer took further steps to corroborate the information supplied by the informant and anonymous citizen other than, apparently, confirming that a trailer as described by the informants was located at the given address. Hanson testified that he attempted to learn more about other residents at the trailer through telephone records, power records, and vehicles at the residence. Despite these efforts, he was unable to ascertain who owned the trailer, and no information concerning any such records was included in his application for the search warrant.
¶10 Nevertheless, Hanson applied for and obtained a search warrant for the entire trailer two days later on November 30, 1995. On
¶ 11 Hanson advised Reesman of his constitutional rights pursuant to Miranda, and interviewed him in his bedroom. During this interview two other officers searched Reesman’s bedroom. Reesman signed a written “waiver of rights” form at that time, which gave the officers permission to conduct the search. The waiver form expressly included the entire residence. Reesman would contend that in signing the waiver, he believed he was only consenting to a search of his vehicle. Hanson’s report, in fact, stated that he obtained only Reesman’s consent to search the vehicle. Reesman testified that he did not understand the consent form at the time, and would not have consented to the search of his bedroom if he had been given the option. Although the waiver was sought, Hanson maintained that the original warrant validly provided that officers could search the entire trailer.
¶12 The initial search of Reesman’s bedroom produced 13 hits of LSD. Reesman then told the officers where more could be found in his room. The officers found an additional 110 hits of LSD.
¶13 On May 22, 1998, Reesman moved to suppress the evidence found in his bedroom, as well as his statements made to officers at the time, claiming that the search warrant issued for the entire trailer lacked probable cause, and that it was overbroad. At that time, Reesman pled not guilty to one count of criminal possession of dangerous drugs with intent to sell, a felony, and criminal possession of drug paraphernalia, a misdemeanor.
¶14 Following the July 24,1998 hearing, the District Court issued its Findings of Fact, Conclusions of Law, and Order. The court followed the well-established Montana rule that the determination of whether there was sufficient probable cause for a court to issue a search warrant must follow the “totality of the circumstances” test. ¶15 The court determined that corroboration of the confidential informant’s first-hand, detailed information by an anonymous tip weighed heavily in favor of the informant’s reliability, and therefore concluded that there was a substantial basis upon which the issuing court found probable cause for the search warrant. The court stated, in its conclusions of law, that “[t]he application for the search warrant provided sufficient probable cause that criminal activity was occurring at the residence named in the caption.”
¶ 17 Reesman ultimately pled guilty, pursuant to a plea agreement, to one count of criminal possession of dangerous drugs, which is a felony offense. He received a suspended sentence of three years. Reesman appealed the District Court’s order denying his motion to suppress evidence, as well as a denial of a motion to dismiss based on destruction of evidence. This matter was heard at oral argument on May 1, 2000.
STANDARD OF REVIEW
¶ 18 The standard of review of a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous. See State v. Kuneff,
¶19 Finally, this Court’s function as a reviewing court is to ultimately ensure that the magistrate or the lower court had a “substantial basis” to determine that probable cause existed. State v. Crowder (1991),
DISCUSSION
¶20 Reesman claims that, from a number of legal angles, the search warrant issued in this instance must be viewed as “fatally” defective, and that due to the destruction of evidence, the District Court erred by not dismissing this case. We conclude that the issue of whether the information supplied by the informants was sufficient to establish probable cause is dispositive, and we therefore narrow our review without reaching the other issues raised by Reesman.
¶21 Furthermore, the State concedes that, in light of the District Court’s findings and conclusions, Reesman did not validly consent to a search of his bedroom and thus the signed waiver was ineffective.
Issue
Did the District Court err by concluding that the application for a search warrant, which provided a confidential in-, formant’s information supplied to law enforcement officers as well as corroboration by an anonymous citizen, created a substantial basis upon which a magistrate could determine probable cause?
¶22 The District Court concluded that “[t]he application for the search warrant provided sufficient probable cause that criminal activity was occurring at the residence named in the caption.” Reesman points to the fact that the information provided by the confidential informant found in the application was corroborated only by an “anonymous citizen,” and not by further independent police investigation. The reliability of the “anonymous” citizen, in turn, was not corroborated by any further independent investigation. Thus, he contends, the warrant application clearly failed to establish probable cause pursuant to Montana’s case law grounded in the Gates totality of the circumstances test.
¶23 Although conceding that law enforcement personnel did not personally take action to independently corroborate the two informants’ information, the State argues that the confidential informant had personal knowledge of the marijuana growing operation in Hogge’s bedroom, and her information was independently corroborated by a citizen informant who had given reliable information in the past and who reported that the marijuana growing operation seen by the confidential informant had been in effect for nearly a year. The State contends that, taken as a whole, the combination of this information is sufficient standing alone to establish probable cause for the search warrant under the totality of the circumstances test.
¶24 The core question here, therefore, is the sufficiency of the application for a search warrant. An application for a search warrant must state facts sufficient to show probable cause for the issuance of the warrant. See § 46-5-221, MCA; State v. Kuneff,
¶25 As a reviewing court, we too must look solely to the information given to the impartial magistrate and to the four corners of the search warrant application. See Crowder,
¶26 By no means is the issue raised here novel. Yet, as evidenced by the parties’ briefs as well as their oral arguments before this Court, our case law as a whole creates an appearance of convolution. The cases cited by both parties reveal a broad spectrum of factual scenarios where information is provided by “anonymous” informants who have personally witnessed criminal activity and “confidential” informants who have not, but are nevertheless deemed “reliable”— or vice versa. Often “concerned citizens” offer information regarding what they have seen or heard regarding actual criminal activity, or merely what they regard as suspicious activity. At the receiving end of such information are law enforcement officers who may choose to follow up on these tips and interviews, utilizing a variety of investigatory tools. Eventually, the “totality’ of the gathered information may be drafted into an application for a search warrant, and, at some point, a threshold is crossed: the independent magistrate, based on the information contained within the four corners of the application determines that, yes, probable cause exists and a citizen’s person or property may be searched by law enforcement officers.
¶27 Upon closer review, however, a synthesis of our case law chalks a fairly uniform equation for determining whether an informant’s
A. The anonymous informant
¶28 First, a threshold question may be asked: is the informant anonymous? This means that law enforcement officers have no idea who is providing the information. A phoned-in Crimestoppers “tip” is one frequent, common example. If the answer is yes, then independent corroboration of the informant’s information is required. This Court has routinely stated that “[c]orroboration of an informant’s information through other sources is necessary when the information is hearsay or the informant is anonymous.” State v. Rinehart (1993),
B. Personal observation
¶29 If the informant is not anonymous, we may then proceed to a second threshold question: is the informant’s information based on
¶30 If the answer is no, then again independent corroboration is required.
C. Reliability
¶31 If the information of actual criminal activity was gleaned from the personal observations of a non-anonymous person, then we may proceed to a final threshold question: is the informant a reliable source of such information? This question, in turn, breaks down into three clearly identifiable scenarios within our search and seizure jurisprudence.
1. The confidential informant
¶32 If an informant is identified in a law enforcement officer’s application for a search warrant as a “confidential informant,” he or she must have provided reliable and accurate information to officers in the past in order for the information to serve as a basis for determining probable cause without further corroboration. This Court has held that a “sworn statement [by a law officer] that an informant has been reliable and provided accurate information on other occasions is sufficient to establish that the informant is reliable.” Kaluza,
¶33 Alternatively, if the informant makes an unequivocal admission against interest, this Court has likewise held that further corroboration is unnecessary. See State v. Adams (1997),
3. The concerned citizen.
¶34 Finally, if the informant was motivated by “good citizenship” and the information provided demonstrates a sufficient degree of the nature of the circumstances under which the incriminating information became known, then the informant’s disclosures are deemed a reliable basis for determining probable cause. This Court has stated that a citizen informant is presumed reliable and such reliability “is generally shown by the very nature of the circumstances under which the incriminating information became known.” State v. Valley (1992),
¶35 If the ultimate answer under the foregoing examinations of reliability is no — that the informant is not a reliable source of such information — then once again independent police corroboration is required. If the answer to the question of reliability is yes, then based on the informant’s information alone, without corroboration, an application for a search warrant may supply the magistrate with a substantial basis for finding probable cause and, consequently, issuing the search warrant. See Walston,
¶37 In this instance, the confidential informant was not “anonymous,” in that she met face-to-face with Detective Hanson, and was subjected to his questioning. Next, her observations, no doubt, were based on personal observations. She stated that she visited the trailer home in question, met with Hogge, and viewed first-hand the marijuana growing in a bedroom closet, describing the trailer home and its interior with sufficient particularity. Thus, the first two threshold steps are clearly satisfied.
¶38 At step three, however, the application for a search warrant did not indicate that as a “confidential informant,” the person was known by law enforcement personnel to have been reliable and a source of accurate information in the past, prior to her meeting with Detective Hanson on November 28, 1995. How she became classified by Gallatin County Sheriff’s officers as “Confidential Informant (Cl) 95-1128” remains a mystery (disregarding, as we must, suppression hearing testimony that provides information beyond the “four corners” of the application originally viewed by the issuing magistrate in this instance). Next, the application did not indicate that the statements were an admission against interest by a co-conspirator or a customer of illegal drugs. Finally, the application simply does not indicate first, that the person was acting as a “concerned citizen,” and second, and more importantly, under what circumstances the informant went to and entered the trailer that day and subsequently was shown the incriminating information she later shared with Detective Hanson. Was she there to clean the carpet? Collect rent? Purchase a gram or two of the fresh harvest? Was she acting under law enforcement direction? Why did Hogge so willingly show her his illegal operation? We do not know, and, accordingly, neither did the reviewing magistrate.
¶39 We hold, therefore, that without further, independent corroboration or investigation, the confidential informant’s information found within the search warrant application here must fail as supply
D. Independent corroboration
¶40 The State nevertheless argues that independent corroboration or investigation of the confidential informant’s information was supplied to the magistrate in Detective Hanson’s application by an “anonymous citizen, who has provided reliable information in the past.” At oral argument, the State asserted that under our decisions in Rydberg, (1989)
¶41 Indeed, we stated in Deskins that “[p]ersonal observation of criminal activity by an informant whose reliability can be established provides probable cause.” State v. Deskins (1990),
¶42 The same factual scenario is present in Rydberg and Oleson. In both instances, officers took independent action to further corroborate information supplied by the informants. See State v. Rydberg (1989),
¶43 As a underlying general rule, further independent corroboration or investigation by law enforcement personnel is the panacea for most warrant applications where information is supplied by an informant. In State v. Walston, we identified this key element expressed in Gates, where the United States Supreme Court determined that an
¶44 In this sense, “corroboration” or “further investigation” as used throughout the foregoing case law — contrary to the State’s argument here — infers independent police work of some kind. See Crowder,
¶45 In fact, our case law offers numerous successful examples of such corroboration or further investigation that established the sufficiency of an informant’s information. For example, in Deskins the officers through various sources including an investigative subpoena verified home ownership, a business licence, vehicle registration, and utility records indicating increased power consumption after receiving án anonymous tip of a marijuana growing operation. Deskins,
¶46 The State concedes that the statements of the confidential informant in the search warrant application here “needed to be independently corroborated.” The State then attempts to supplant actual law enforcement officers’ corroboration with information from an anonymous citizen who, uncannily, “provided reliable information in the past.” Notwithstanding this obvious contradiction, we hold that a source of information that requires further corroboration under the analysis set forth here cannot serve as a source of independent corroboration or investigation that transforms another informant’s information into a basis for establishing probable case. As our case law makes clear, an anonymous source always requires corroboration. See Worrall, ¶ 22.
¶47 Finally, the reference to the “anonymous citizen” in the application provides no indicia of reliability of a citizen informant in terms of personal observation, or the circumstances under which the person made his or her personal observations. Thus, even ignoring the “anonymous” status of the citizen informant, the inclusion of this piece of information offers no corroboration value to the warrant application as a whole.
¶48 Accordingly, we conclude that the application for a search warrant did not provide a substantial basis for the conclusion that
Notes
. We note that this rule as it appears in more recent case law includes the term “only” meaning that only when an informant is anonymous or provides hearsay must further corroboration be supplied by law enforcement officers. See State v. Worrall,
Concurrence Opinion
concurring.
¶49 I concur that the search warrant application in this case was insufficient in that it did not provide a substantial basis for the conclusion that probable cause existed to search the trailer home in which Reesman resided. However, I disagree with the Court’s reasoning. In my view the Court’s conclusion that corroboration must be accomplished through “police investigation” is too restrictive. I would conclude that the confidential informant’s report was not sufficiently corroborated by the tip from the anonymous citizen because the circumstances provided by Detective Hanson concerning who provided the tip and how the tip was acquired were too conclusory for a magistrate to independently review.
1. Confidential Informant’s Report
¶50 I agree with the Court’s conclusion that the information provided by the confidential informant was insufficient, standing alone, to justify the issuance of a search warrant. In analyzing the sufficiency of a search warrant application, we have previously stated:
To address the issue of probable cause for issuance of a warrant, this Court has adopted the “totality of the circumstances” test set forth in Illinois v. Gates (1983),462 U.S. 213 ,103 S.Ct. 2317 , 76-L.Ed.2d 527. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the magistrate], including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [T]he duty of the reviewing court is to ensure the magistrate had a “substantial basis” for ... concluding] that probable cause existed.
State v. Wilson (1992),
¶51 The first source of Detective Hanson’s information was referred to as “Confidential Informant 95-1128.” Detective Hanson stated that he conducted an interview with this confidential informant who advised Detective Hanson that the confidential informant had visited
¶52 Detective Hanson provided sufficient information in the search warrant application for the reviewing judge to determine that the confidential informant’s report, if honest, was likely to be true because the informant’s knowledge was based on the informant’s personal observations of criminal activity. See State v. Rinehart (1993),
¶53 Under the “veracity” test, facts must be brought to the judicial official’s attention so that the judge can independently determine the inherent credibility of the informant, see, e.g., State v. Kaluza (1995),
¶54 Detective Hanson provided absolutely no information regarding the confidential informant’s veracity. Detective Hanson did not indicate that the confidential informant was inherently credible because the informant had a proven track record of providing reliable information in the past. Alternatively, Detective Hanson did not indicate that although the confidential informant did not have a proven track record of providing reliable information, the confidential informant’s report was likely to be particularly reliable on this occasion because, for instance, it was an admission against the informant’s in
¶55 Accordingly, I agree with the majority’s conclusion that the confidential informant’s report, standing alone, did not provide a sufficient basis for the issuance of a search warrant.
2. Corroboration by “Anonymous Citizen”
a. Court’s approach: “independent police work”
¶56 As the Court correctly frames it, the issue then becomes whether the confidential informant’s report was independently corroborated such that, despite its inadequacy, it could still form part of the basis for the issuance of a search warrant. The only corroboration of the confidential informant’s report was contained in the following statement: “An anonymous citizen, who has provided reliable information in the past, stated that the marijuana grow has been in existence for approximately one year.”
¶57 The Court concludes that this corroboration is deficient for two reasons. First, the corroboration was insufficient because it did not provide an independent basis for a determination of probable cause. See Court’s opinion at ¶ 46 (stating that “we hold that a source of information that requires further corroboration ... cannot serve as a source of independent corroboration”). Second, the corroboration was insufficient because it was not the result of “police investigation.” Court’s opinion at ¶¶ 41-45. Pursuant to the Court’s opinion, the only corroboration that can serve to cure the inadequacies of an informant’s report is corroboration through “independent investigation” by law enforcement personnel. See Court’s opinion at ¶ 43. In effect, the Court’s conclusion means that an application for a warrant that contains information from an informant can only be sufficient under two factual scenarios: either (1) the informant’s report provides a sufficient basis for a determination of probable cause and therefore does not require any further corroboration; or (2) an informant’s report is insufficient but is “corroborated” by “police investigation.”
¶58 In my view, corroboration by “police investigation” is certainly a reliable method of corroboration, however, corroboration could be accomplished by other means as well. More importantly, however, I fear this requirement diverts the judicial officer’s attention from the more important question which, on the facts of the instant case, is whether Detective Hanson presented sufficient information for the judge to accredit the confidential informant’s report.
b. Analysis of concurrence
¶60 The corroboration of the confidential informant’s report was that “[a]n anonymous citizen, who has provided reliable information in the past, stated that the marijuana grow has been in existence for approximately one year.”
¶61 Detective Hanson characterized the source of this knowledge as an “anonymous citizen.” The use of the term “anonymous” implies that the source was unknown to Detective Hanson. The use of the word “citizen” implies that the source was motivated by good citizenship. See Worrall, ¶ 20 (observing that “information provided to the police that is motivated by good citizenship is a reliable basis for determining probable cause”). However, the phrase “who has provided reliable information in the past” belies both of the aforementioned assumptions. From this phrase, it becomes clear that Detective Hanson was alleging that he knew the source’s identity because the source had provided him with information in the past, but was keeping the source’s identity confidential. Furthermore, it is evident that the source was not simply a “citizen,” but rather was a person who had ongoing access to information about unlawful activities. Detective Hanson did not provide any circumstances regarding how he acquired the information from the “anonymous citizen” nor did he provide any circumstances which might indicate how the “anonymous citizen” learned of the “marijuana grow” operation. Lastly, the only relevant information Detective Hanson provided concerning the “anonymous citizen” was Detective Hanson’s characterization of the “anonymous citizen’s” reliability.
¶63 I recognize that reviewing courts should refrain from being hypertechnical when reviewing the legality of a search warrant. We have previously stated:
An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing court in a common sense, realistic fashion and without a grudging or negative attitude that will tend to discourage police officers from seeking warrants. Reviewing courts should avoid hypertechnical interpretations of warrant applications and, in doubtful or marginal cases, resolve the issue with the preference for warrants in mind.
Rinehart,
¶64 The source of this oft-repeated language is United States v. Ventresca (1965),
This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based.*428 Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform [the magistrate] detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper technical, rather than a common sense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Ventresca,
¶65 The Supreme Court’s exhortation to resolve questionable cases in favor of upholding warrants is much more subtle and sophisticated than we have previously implied. I would interpret the forgoing to mean that when an affidavit is not purely conclusory, but rather details the underlying circumstances and supplies some reason for crediting the source of the information, a reviewing court should resolve a doubtful case with a preference for upholding the warrant. In the instant case, the confidential informant’s report was insufficient because the search warrant application provided no evidence of the confidential informant’s veracity. Additionally, the “anonymous citizen’s” report was not corroborative because it was merely a collection of bare assertions and thus could not supply an independent reason for crediting the confidential informant’s report. However, this is not to imply, as the Court does, that information not acquired through “independent police investigation” can never corroborate an insufficient informant’s report unless it provides a sufficient basis on its own to support probable cause. See Court’s Op. at ¶ 46. It is conceivable that had Detective Hanson provided some of the underlying circumstances surrounding the “anonymous citizen’s” report, there may have been a substantial basis for the judge reviewing the application to conclude that there was a fair probability that contraband or evidence of a crime would be found in the trailer home.
¶66 In short, for the benefit of law enforcement, I recommend the following advice: A sufficient warrant application should always detail both how the officer acquired the information giving rise to probable cause, and, if the officer is relying on an informant, how the informant acquired his or her knowledge and circumstances which would
¶67 For the foregoing reasons, I concur that the warrant application was insufficient. To conclude otherwise would be to render the constitutional search warrant requirement a mere formality. The corroboration of the confidential informant’s report by the tip from the “anonymous citizen” was simply too conclusory to allow a judge to independently determine the existence of probable cause to justify the issuance of a warrant.
Concurrence Opinion
responds to the concurring and dissenting opinions, joined by JUSTICE LEAPHART.
¶68 Implicit in the concurring and dissenting opinions
¶69 Nevertheless, given the hostile knee-jerk reaction that typically attends the issuance of court opinions that are perceived — whether wrongly or rightly — as either making life more difficult for the police
¶70 Although agreeing with the majority opinion that the search warrant application in this instance was insufficient, the concurring opinion suggests that the corroboration of information supplied by an unreliable source may be accomplished by means other than further police investigation. No authority is cited for this novel proposition. This, of course, begs the question, “What other means are envisioned?” The concurrence never says.
¶71 As indicated in the majority opinion, further police investigation of an otherwise -unreliable source of information is the heart and soul of the U.S. Supreme Court’s decision in Illinois v. Gates, which this Court has followed since 1984. The U.S. Supreme Court stated that “[o]ur decisions applying the totality of the circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant’s tip by independent police work” Gates,
¶72 It was the recognition of these independent sources of information uncovered by further police efforts that led to the Court’s reversal of the Illinois Supreme Court’s decision, which had determined that Mader’s search warrant application was defective due to the lack of reliability of the original informant’s anonymous letter. Thus, an informant’s letter that the Court recognized “standing alone... would not provide the basis for a magistrate’s determination that there was probable cause to believe contraband would be found in the Gates’ car and home” had been “corroborated in major part by Mader’s efforts.” Gates,
*431 The Supreme Court of Illinois reasoned that Draper involved an informant who had given reliable information on previous occasions, while the honesty and reliability of the anonymous informant in this case were unknown to the Bloomingdale police. While this distinction might be an apt one at the time the police department received the anonymous letter, it became far less significant after Mader’s independent investigative work occurred.
Gates,
¶73 Thus, under Gates, once officers receive information of illegal activities from sources that do not establish probable cause “standing alone,” such information may nevertheless serve as a basis for establishing probable cause if the officers subsequently corroborate the information through independent investigation. As made plain in the majority opinion, there is no prescribed limit as to what independent resources — including the use of other informants — an officer might use for this corroboration. See majority opinion, at ¶ 45.
¶74 Rather, the majority opinion carefully maps Montana case law, dividing information supplied by informants into two distinct categories: that which may stand alone for a probable cause determination, and that which requires further police investigation. In this instance, the information supplied by both the confidential informant and the anonymous citizen, standing alone, clearly falls into the latter category, and therefore each required further “corroboration through other sources of information.” Gates,
¶75 It is unclear, therefore, why the concurrence chooses to belabor under what circumstances the information supplied by one unreliable source could, conceivably, corroborate another unreliable source without “further police investigation,” and yet still establish probable cause.
¶76 The underlying fallibility of the concurrence’s reasoning on this point is revealed by the lengths to which it would be necessary for Detective Hanson to cure the defects of the “anonymous citizen,” as a corroborating source of information. According to the concurring
¶77 Accordingly, Detective Hanson could have attested in the warrant application (1) that he received a crime-stopper tip by phone; (2) that the person chose to identify him or herself, and that, in turn, he knew the person; (3) that the person had provided reliable and accurate information in the past; and (4) that the person had personally observed the grow operation during the course of the past year. The concurrence finds this process — which does not appear to involve “further investigation" — satisfactory to corroborate the confidential informant’s information. And there is a good reason why. This is precisely the process outlined in the majority opinion.
¶78 First, the person is not anonymous. Second, the source personally observed the illegal activity. And third, the informant has provided reliable and accurate information in the past. If this had been the factual circumstances, as the concurring opinion suggests, the issue of “independent investigation” would be irrelevant, because none would be required. Alternatively, at the risk of rehashing that which has already been made clear, under Montana case law if the person remained anonymous, further corroboration would have been required; if the source had not personally observed the illegal activity, further corroboration would have been required; and finally if the informant had not provided reliable and accurate information in the past, or was not a “concerned citizen,” further corroboration would have been required.
¶79 Thus, it remains unclear how the information provided by either the confidential informant or the anonymous citizen in this instance could have been cured for the purpose of establishing probable
. For purposes of this separate opinion I will treat the dissenting opinion as being included within the concurring opinion as the former sets out no rationale independent of the latter.
Dissenting Opinion
dissenting.
¶80 I respectfully dissent from that portion of the majority opinion at ¶¶ 41-45, concluding that corroboration for a search warrant can only be sufficient if it is the result of “police investigation.” As stated in Justice Regnier’s concurring opinion, “[p]ursuant to the Court’s opinion, the only corroboration that can serve to cure the inadequacies of an informant’s report is corroboration through ‘independent investigation’ by law enforcement personnel.” This requirement is too restrictive. Certainly corroboration can be obtained in many ways other than “independent police investigation.” For that reason, I dissent from the majority opinion.
¶81 The well-reasoned discussion concerning other aspects of the inadequacies of the warrant application in Justice Regnier’s concurring opinion I believe to be correct, and, therefore, I join in that part of the concurring opinion.