*1 MONTANA, STATE OF Respondent, Plaintiff RYDBERG, Defendant Appellant. KATHERINE No. 89-193. 1989.
Submitted on Briefs Aug. 1989. Decided Wilcox, Gary Billings, appellant. defendant Racicot, McCarter, Gen., Atty. Gen., Atty. Dorothy Marc Asst. He- lena, Bevolden, Hanser, Deputy County Atty., L. Harold Curtis County Atty., respondent. Billings, plaintiff Opinion of the Court. GULBRANDSON delivered
Defendant, appeals judgment Rydberg, Katherine from a of District, for the Thirteenth Judicial Yellowstone District Court County, finding guilty Dangerous her Criminal of of Possession 45-9-102, Drugs pursuant judgment entered af- MCA. This was § suppress ter the Rydberg’s District Court denied motion to evidence pursuant seized allegedly proba- to a search warrant issued without ble cause. We affirm. presented
The issue for our is whether the District review Court in finding application. erred that the for the search warrant probable contained facts sufficient to establish cause. 8, 1988, August Thayer
On application for a Detective filed an Rydberg’s grounds appli- warrant for for the residence. part July phone cation were on a call from an anon- ymous reported observing Rydberg’s involvement buying with selling of identified informant also Hicks, people, two other in- Walter Foster and Debbie who “were drugs” Rydberg. Specifi- volved with and who also associated with cally, the Rydberg approxi- informant stated that Foster had sold mately gram one of cocaine the month before. This information was partially by crimestopper’s tip corroborated a received on March 1988; tipster reported, primary as that Foster did buying selling drugs. was July 25, 1988, primary reported observing
On dan- gerous drugs Rydberg at the The informant Fos- residence. observed 28, 1988, Rydberg’s reported seeing ter at residence on and also Rydberg at Hicks’ times.” called a residence “several The informant 7,1988, crank, August reported third observing time on cocaine, dangerous drugs Rydberg residence. at the application grounds These facts were for issu- also noted ance then of the search warrant. charged stated that both Foster and Hicks had been possession dangerous drugs, subsequently and that Hicks was selling charge drugs convicted of these while Foster’s was dismissed. purse produced subsequent Rydberg’s search of grams methamphetamines, cocaine, gram 5.7 1.5 grams marijuana, tube, empty three a razor blade and snort bindles. Consequently, County Attorney County Yellowstone 12, 1988, Rydberg August filed Criminal via Information 45-9-102, Dangerous Drugs Possession MCA. violation of § Rydberg subsequently suppress all seized filed a motion to evidence during August motion was denied. 1988 search. The trial, guilty right jury After she found waived her on and received a three- March before the District Court year speci- imposition subject to fulfillment of deferred of sentence fied conditions. alleges that appeals judgment from and sentence. She purse federal
the search her a violation of her residence and applica- rights and state because the search warrant constitutional probable tion did not contain sufficient to establish cause. facts States Constitution Fourth Amendment United II, protect Article Section of the Montana State Constitution against provi searches and seizures. These constitutional unlawful require showing war sions facts a search rant sufficient State O’Neill establish issu 208 Mont. Probable cause for 763-64. *3 however, warrant, that “significantly ance of a is less than search (Mont. 1989), required for a conviction.” Walston 1389, 309, applica 1387, St.Rep. 768 P.2d 46 311. The probability of tion need the contain facts sufficient to indicate Illi “totality activity criminal the of the circumstances.” 213, 238, nois v. Gates U.S. 103 S.Ct. (Mont. 1986), 527, 548; State v. Crain 223 Mont. “totality circum 1629. This analysis requires practical, issuing magistrate
stances” make a activity commonsense decision the of criminal about from: him, includ- before
“all the forth the affidavit circumstances set persons supplying hear- ing knowledge’ the ‘basis of say information Gates, L.Ed.2d at
Illinois v. 462 U.S. at in the warrant totality We facts set forth search hold that is- application by Thayer to lead the filed sufficient Detective were con- suing probably magistrate Rydberg’s that residence conclude dangerous drugs. knowledge tained basis of informant’s was stated; presence drugs Rydberg’s informant learned of the through personal crimestopper’s tip, residence observation. The provided some corroboration as to the character of Foster and reported by veracity as indicates the of the informa- provided. application both tion stated that Fos- previously charged drug-related ter and Hicks had of- been police provided regarding fenses. If a official information veracity prior drug-related charges, Foster’s and Hicks’s then supported. information further application regrettably clearly fails to state the source of this information, however, identify does the informant reiterating when reported by ap- facts that were informant. plication states that: subjects
“Both previously of these have [Foster Hicks] possession dangerous drugs. was Hicks con- charges victed on selling dangerous drugs. charge Foster’s was dismissed.
“According to the Cl Informant], Foster sold [Confidential . . . Accord- approx, ago some cocaine gram, one a month ing Cl, working that department Rydberg with this according times, been seen at Debbie Hicks’s residence several also to the again say who called in on 7-25-88 to that at the drugs again, there was some seen Cl . . . the same August 7, again, On called this office with some talking to the concerning Rydberg. information After cocaine, informed that the house was crank and added.) drugs.” (Emphasis identify warrant does the informant as person providing the information about Foster’s and Hicks’s prior drug charges, yet specifically it does refer provided, per- source of the indicating other information provided son other than the informant the facts about Foster’s and prior Hicks’s criminal record.
When exists to determines *4 warrant, warrant the issuance of a search this not Court should give great every deference but to that decision we should also draw v. Sund possible reasonable support inference decision. berg (Mont. 1988), St.Rep. Mont. P.2d State v. Pease 2240; above, up- we 1424. In of the facts outlined suppress evi- Rydberg’s motion to
hold the District Court’s denial therefore affirm under the warrant and dence seized judgment.
Affirmed. HARRISON and and JUSTICES
CHIEF JUSTICE TURNAGE WEBER concur. participate opinion. this
JUSTICE SHEEHY did HUNT, dissenting, each JUSTICE JUSTICE McDONOUGH and concurring in the other: McDONOUGH, dissenting: home of the defendant’s for the search warrant pertinent'parts not sufficient to establish
such are as follows: anonymous phone from a call “On received an 7-6-88 this office concerning a KATHY subject some information who had Laurel, Court, RYDBERG, Trailer who lives at Sunhaven selling of Montana, dealing, buying involvement who has a confiden- drugs. subject in since then has become who called was involved with RYBERG tial informant. The Cl stated that [sic] were people, two names people drugs. who Of these several are into FOSTER, E. at 1515 Main brought up. who lives One is a WALTER HICKS, lives Laurel, is DEBBIE who The other Street Montana. street, Billings, Montana. on 224 South 32nd previously subjects “Both these have charges ‘dangerous drugs. on the possession of Hicks was convicted According charge was dismissed. selling dangerous Foster’s gram, a approx; one cocaine sold Foster ago. month tip 3 1988. crimestoppers on March in on
“Foster also was called Main, lives who that a Walter Foster informant said differ- Laurel, selling' drugs. This is a Montana, dealing working According entirely. ent informat [sic] residence Hicks at Debbie department Rydberg has been seen again on 7-25- times, who called according also several drugs again, say there was some 88 to at the Rydberg house at the seen Also Foster has been that was the CI.
75 recently. Foster was observed at the residence at around 28, 10:00 on a 4 driving PM 1988. Foster was cream colored door Ford. 7,
“On August again, 1988 the same called this office some information, concerning talking the Rydberg. After to in was informed crank that the house was and co- caine, upon
“This information that was received from the is the being residence, time, Cl in seeing drugs, the from time to the paraphenalia and the [sic].”
It is examining wording to be noted from the that only person any the way who for the in sure connects defendant possible items, incriminating criminal behavior or is the confidential confusing anonymous informant. It is whether the July 6, 1988, in on called a is the same or different confidential in- formant who is referred to later.
Therefore, applicant warrant, detective, a has as his defendant, hearsay connection evidence of the confidential nothing informant. There the affidavit which would magistrate hearsay inform the that such was reliable or that the of- thought ficer the informant was credible. The information and state- given by ments any vague way explicit, the informant are and do not lend to be themselves able be checked as to their veracity. adopted totality (see
We.have of the circumstances test (Mont. Sundberg v. 1988), 736, 765 P.2d [235 2235) adopted 213, in Illinois v. Gates U.S. S.Ct. 76 L.Ed.2d which was discussed therein follows: reasons,
“For all these
we conclude that it is wiser to abandon the
‘two-pronged
Aguilar
test’
established
our decisions
Spinelli. In
place
totality-of-the-circumstances
its
we reaffirm the
analysis
traditionally
probable-cause
that
informed
has
determina-
States,
tions. See Jones v. United
U.S.
S.Ct.
[362
Ventresca,
697], supra;
United States v.
380 U.S.
[85
Brinegar
States,
(1965);
S.Ct.
13 L.Ed. 2d
v. United
684]
(1949).
U.S. 160
S.Ct.
93 L.Ed.
The task of the issu-
[69
1979]
ing magistrate
simply
practical,
to make a
common-sense decision
Whether, given all the
circumstances set forth in
affidavit before
him, including
knowledge’ persons sup-
and ‘basis
plying hearsay information,
fair
contra-
there is a
that
particular
band or
a
place.
evidence of crime will be found
And
duty
magistrate
reviewing
simply
to ensure
of a
court is
probable concluding]’
for . . .
had a ‘substantial basis
States,
Looking would ask at this deficiency questions point by asking questions out application: “Can the confidential informant be believed? *6 dates, times,
“Why specific places, itemiza- isn’t more about he/she etc., tion, house, description and therefore of the actually house, in the “Was he/she corroborated?”
“Can information be his/her here, is no ba- there Without further facts under the circumstances for issuance of the warrant. probable sis to believe exists cause I fur- suppress I the evidence. would reverse the District Court and in WILLIAM following ther concur dissent JUSTICE HUNT, SR. HUNT, dissenting:
I sufficient The did not contain dissent. search warrant and, thus, protections probable violated the facts to establish cause Consti- guaranteed by United States the Fourth Amendment II, tution Art. 11 of the Montana Constitution. § upon partially telephone application was observing anonymous reported calls from an so, notes, correctly buying majority selling drugs. warrant, he a search examines for when must consider: him, affidavit before
“. . . all the set forth circumstances persons supply- knowledge’ including and ‘basis ing hearsay [Emphasis information. added.]” Illinois Gates 462 U.S. received information validity of a warrant based on as the reli- necessarily negated long
from an informant will not be (the credibility veracity) of the informant’s ability and the basis attempt knowledge majority makes a feeble is established. The veracity anonymous establish the of the who communi- by telephone, tip by stating crimestopper’s cated cor- that because a report, “veracity roborated the informant’s of the information provided” veracity of the “information” indicated. It is not informants, veracity dealing is at issue when but the case, veracity the informant himself. In this informant is impossible anonymous. to establish because the remains anonymous, veracity Because the his cannot informant remains be established, therefore, may his not be as a statements introduced basis issuing the search warrant. Without informant’s state- ments, the search probable warrant fails lack of majority only “application states that the need contain facts activity sufficient to indicate the of criminal the totality of the circumstances.” Aside from received information calls, anonymous telephone from the informant’s other fact issuing tip. when crimestopper’s considered the warrant was a veracity crimestopper’s anonymous tipster, as with the in- formant, know, For all it established. we could have person. been the same
Moreover, majority regrettably “application admits clearly fails to state Regrettable the source of this in- information.” deed! regrettable precedent What even the kind of estab- circumstances, lished this case. Even the most lenient is, upon information relied would not establish therefore, unconstitutional.
I would reverse the District Court. also concur the dissent of JUSTICE McDONOUGH.