February 23 2016
DA 15-0403
Case Number: DA 15-0403
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 42
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BRADLEY ROBERT KANT,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DC 15-06
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Karl Knuchel, Shena Roath, Karl Knuchel, P.C., Livingston, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Bruce Becker, Park County Attorney, Kathleen Carrick, Deputy Park
County Attorney, Livingston, Montana
Submitted on Briefs: January 6, 2016
Decided: February 23, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court..
¶1 Bradley Kant was arrested and charged with three drug-related criminal charges,
two of which were felonies. The charges were brought following a warranted search of
Kant’s home and the seizure of 67 live marijuana plants and numerous miscellaneous
paraphernalia. Kant appeals the Sixth Judicial District Court’s denial of his combined
motion to suppress and dismiss. We affirm.
ISSUE
¶2 A restatement of the issue on appeal is:
¶3 Did the District Court err in denying Kant’s motion to suppress and dismiss?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 During 2010 and 2011, Bradley Kant and his wife, Crystal, held registered
caregiver’s licenses under the Montana Marijuana Act authorizing them to grow and
distribute marijuana in accordance with then-applicable statutes and regulations. Upon
expiration of their licenses, they failed to renew them but continued growing and
distributing marijuana.
¶5 In 2012, Detective Tim Barnes, an acting detective for the Park County Sheriff’s
Office and the Missouri River Task Force, executed a search warrant on a Livingston,
Montana home and seized numerous marijuana plants and arrested one individual. This
individual informed Barnes that he had gotten his original plants from his neighbor, Brad
Kant, who was also growing numerous plants in his home.
¶6 On January 5, 2015, Barnes was informed by a separate confidential source (CS)
that Crystal was growing multiple marijuana plants in her home and was delivering
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marijuana to Vicki Jefferies’ home every Wednesday at approximately 7:00 p.m. The CS
claimed that Jefferies in turn supplied Mark Harrison with marijuana. Mark Harrison was
the CS’s roommate at that time. The CS provided Barnes with cellphone number,
address, and vehicle information about Crystal, Jefferies, and Harrison. Additionally, the
CS made statements against self-interest by admitting to smoking marijuana with
Jefferies and trading prescription drugs to Jefferies for marijuana.
¶7 On January 14, 2015, Barnes submitted an application for a search warrant to
conduct a search of the Kants’ residence. Among other things, Barnes asserted in the
application that on Wednesday, January 7, 2015, at 6:43 p.m., a vehicle bearing a license
plate registered to Kant was seen arriving at Jefferies’ home. A single unidentified
occupant exited the vehicle and entered the home. Barnes also referenced the 2012 tip
that Kant was then growing marijuana in his home. On January 9, Barnes interviewed a
Livingston Police Officer who lives near Kant. The officer reported that during the hot
summer months, a strong odor of fresh marijuana can be detected outside of the Kants’
home. The magistrate granted the warrant and on January 16, 2015, Barnes and another
detective executed it. The Kants were cooperative and the detectives seized 67 plants, 12
pounds of prepared product, and multiple items of paraphernalia for growing and
distributing.
¶8 On February 3, 2015, the Park County Deputy County Attorney filed an
Information against Bradley and Crystal Kant asserting the following criminal offenses:
criminal production or manufacture of dangerous drugs, a felony; criminal possession
with intent to distribute dangerous drugs, a felony; and criminal possession of drug
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paraphernalia, a misdemeanor. On February 17, 2015, Kant made his initial appearance
and entered a plea of not guilty. On February 25, 2015, Kant moved to suppress all
evidence seized during the search of his residence on the grounds that Barnes’ application
for the warrant lacked sufficient facts to establish probable cause that the Kants’ home
contained drugs or drug-related evidence. Kant sought dismissal of the action against
him. The State opposed the motion.
¶9 On April 7, 2015, the District Court denied Kant’s suppression motion. On June
15, 2015, Kant entered into a plea agreement under which charges against Crystal were
dismissed, and he pled guilty to criminal possession with intent to distribute dangerous
drugs. Kant reserved the right to appeal the denial of his suppression motion, and the
State agreed to dismiss the remaining charges. Kant was sentenced to 5 years to the
Department of Corrections, all suspended, subject to a fine and other conditions.
¶10 Kant filed a timely appeal.
STANDARD OF REVIEW
¶11 The grant or denial of a motion to dismiss in a criminal proceeding is a question of
law which we review de novo to determine whether the district court’s conclusion of law
is correct. State v. Willis, 2008 MT 293, ¶ 11, 345 Mont. 402, 192 P.3d 691.
¶12 We review a district court’s ruling on a motion to suppress to determine whether
the court’s findings of fact are clearly erroneous and whether those findings were
correctly applied as a matter of law. State v. Deshaw, 2012 MT 284, ¶ 13, 367 Mont.
218, 291 P.3d 561.
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¶13 This Court’s function as a reviewing court is to ensure that the magistrate or the
lower court had a “substantial basis” to determine that probable cause existed. A
magistrate’s determination that probable cause exists will be paid great deference and
every reasonable inference possible will be drawn to support that determination. State v.
Rinehart, 262 Mont. 204, 211, 864 P.2d 1219, 1223 (1993) (internal citations omitted);
State v. Reesman, 2000 MT 243, ¶ 19, 301 Mont. 408, 10 P.3d 83 (overruled in part on
other grounds by State v. Barnaby, 2006 MT 203, ¶ 42, 333 Mont. 220, 143 P.3d 809
(Cotter, Nelson, JJ., dissenting)).
DISCUSSION
¶14 Did the District Court err in denying Kant’s combined motion to suppress and
dismiss?
¶15 Kant presents several arguments on appeal. He argues that the District Court (1)
misconstrued and misapplied State v. Reesman and State v. Barnaby; (2) erroneously
ruled on the issue of staleness of certain evidence; (3) incorrectly accorded the magistrate
too much inferential latitude; and (4) erroneously denied his motions to suppress and
dismiss.
¶16 In Reesman, we addressed the sufficiency of the application for a search warrant
employing the “totality of the circumstances” standard set forth in Illinois v. Gates, 462
U.S. 213, 103 S. Ct. 2317 (1983). We reviewed years of case law following the adoption
of the Gates standard and observed that “certain indelible threshold rules have emerged.”
Reesman, ¶ 27. Relying on these rules, we compiled a three-prong test to determine
whether probable cause exists for the issuance of a search warrant:
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(1) Was the informant anonymous or was the information provided
hearsay? If so, independent corroboration of the information is required;
(2) If the informant is not anonymous, was the information provided
based upon personal observation of criminal activity or was the information
hearsay? If hearsay, independent corroboration is required; and
(3) If the information from a non-anonymous informant was gathered by
personal observation of criminal activity, is the informant reliable?
Reesman, ¶¶ 28-31. We further explained that under this standard, the court reviewing an
application for a warrant “evaluates the facts asserted within the four corners of the
application and makes a practical, common-sense decision as to whether there is a fair
probability that incriminating items will be found in the place to which entry is sought.”
Reesman, ¶ 24.
¶17 In Barnaby, the Court “deviate[d] slightly” from Reesman’s “strict rules requiring
independent police corroboration” when it determined that the “critical question when
evaluating probable cause is not whether an individual report meets the requirements of a
particular test, but whether the application as a whole states sufficient facts to support a
determination of probable cause.” Barnaby, ¶¶ 39-41. Kant argues that Barnaby
wrongly relaxed the Reesman test.
¶18 Kant asserts that the District Court erroneously implied that Barnaby overruled
Reesman. However, the Barnaby Court specifically admonished “police officers to
corroborate independently information from sources of questionable reliability.”
Barnaby, ¶ 42. Kant claims that the only information contained in the warrant
application actually corroborated by Barnes was Crystal’s cellphone number and
Jefferies’ and Harrison’s address and vehicle information. In other words, he complains
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that the District Court’s application of Barnaby resulted in the court’s failure to properly
analyze the warrant application contents under Reesman.
¶19 Additionally, Kant challenges the District Court’s acceptance of or reliance on
stale information contained in the warrant application, i.e., the Livingston police officer’s
comment that summer temperatures caused the smell of marijuana to be detectable near
Kant’s home, and a statement by an arrestee in June 2012 that he had gotten his
marijuana plants from Kant. Kant contends that this stale information was insufficient to
corroborate other information contained in the application and should have been
disregarded.
¶20 Kant also argues that the magistrate erroneously inferred the existence of certain
facts from the application for the search warrant, when the application itself did not
categorically assert these facts. Specifically, he maintains that the magistrate inferred
from the application that: (1) the CS had “first-hand” knowledge of the Kants’ criminal
activity based on personal observation; (2) it was Barnes himself who observed a single
occupant exiting Kant’s truck at Jefferies’ house; and (3) the marijuana being supplied to
Harrison by Jefferies was marijuana grown and distributed by the Kants. He maintains
that the magistrate was required to rely solely on the information contained within the
four corners of the search warrant application and supporting documentation in
determining whether probable cause exists, but that she instead engaged in unsupported
inferences to justify the issuance of the search warrant.
¶21 We first address Kant’s complaint that a neighbor’s June 2012 claim that he
obtained marijuana plants from Kant, and Officer Leonard’s claims that during the hot
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summer months, the scent of fresh marijuana was evident near the Kants’ home, were too
stale to be considered. As we are not basing our decision on either of these reports, we
need not address them further.
¶22 Reviewing the remaining information included in the application, we analyze it
under Reesman and Barnaby. In his affidavit, Barnes stated that the confidential source
who provided information about Crystal, Jefferies, and Harrison was “known to law
enforcement.” As such, the CS was not anonymous, as addressed in the first prong of the
Reesman test. Under the second prong, we ask whether the CS’s information was based
on his or her personal observation of the criminal activity or on hearsay. The affidavit
provided little information about the CS. We do not know how the CS was “known to
law enforcement,” whether the CS had provided reliable information previously, or how
the CS discovered the information supplied to Barnes. Under prong two of Reesman,
without this information, Barnes was required to independently corroborate the
information provided.
¶23 While some of the language of the application is less than clear, reasonable and
acceptable extrapolations may nonetheless be made. After receiving all of the CS’s
information, Barnes independently, through personal surveillance or review of law
enforcement records, corroborated what the CS had told him, including the phone
number, addresses, and vehicle registration information for Crystal, Jefferies, and
Harrison. We note that while Barnes did not expressly identify himself in his affidavit as
the person who observed Kant’s car at Jefferies’ residence on the expected day and time,
he did not identify anyone else as the surveillant, unlike the remainder of his application
8
in which he specifically identified each source of the information obtained. Based upon
Barnes’ statement that he conducted personal surveillance while corroborating the CS’s
information, it is reasonable to conclude from a “practical and common-sense” review of
the application that Barnes was the surveillant. His failure to affirmatively so state could
have been an oversight or the result of poorly drafted language, but we conclude it is not
fatal. Because we conclude that Barnes corroborated the CS’s information, we need not
consider the remaining prongs of the Reesman test except to note that the CS’s
admissions against interest further support a finding of CS reliability under the third
prong of the test. For these reasons, we conclude that the application satisfies the
Reesman test. Having determined that the warrant application satisfies the stricter
Reesman test, we need not engage in further analysis under Barnaby.
¶24 As noted above, we are tasked with ensuring that the magistrate had a “substantial
basis” to determine there was probable cause for the issuance of the warrant. We will
pay the magistrate’s determination great deference and every reasonable inference will be
drawn to support that determination. Rinehart, 262 Mont. at 211, 864 P.2d at 1223.
Moreover, probable cause does not require facts sufficient to show criminal activity, but
rather requires a determination that there exists a probability of criminal activity.
Barnaby, ¶ 30. We conclude that the magistrate had a substantial basis for concluding
there was a probability of criminal activity, and that the District Court did not err in
denying Kant’s suppression motion.
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CONCLUSION
¶25 For the foregoing reasons, we affirm the District Court’s denial of Kant’s motion
to suppress and dismiss.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
Justice James Jeremiah Shea dissents.
¶26 I dissent from the majority’s conclusion that the search warrant application
contained probable cause to search Kant’s residence. I would reverse the District Court’s
order denying Kant’s motion to suppress evidence of the marijuana plants and drug
paraphernalia found at Kant’s residence on the ground that the warrant application did
not demonstrate sufficient independent corroboration of the CS’s tip.
¶27 As the majority recognizes, the CS’s tip falls under the second prong of the
Reesman test for determining probable cause: the informant was not anonymous, and the
information provided was hearsay, so independent corroboration was required. Opinion,
¶ 22. The majority concludes that the following facts constituted sufficient independent
corroboration to warrant a finding of probable cause to search the Kant’s home: the CS
provided Crystal’s phone number and Jefferies’ and Harrison’s addresses and vehicle
information; and the CS stated that Crystal brings marijuana to Jefferies’ home every
Wednesday at around 7:00 p.m., and Barnes observed an unidentified person emerge
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from a vehicle registered to Kant enter Jefferies’ residence on a Wednesday at 6:43 pm.1
Opinion, ¶ 23. For the reasons discussed below, I respectfully disagree with my
colleagues that this constitutes sufficient independent corroboration.
¶28 In State v. Griggs, 2001 MT 211, ¶ 40, 306 Mont. 366, 34 P.3d 101, we held:
The focus of a court in reviewing [a search warrant application] that relies
on corroboration of non-criminal activity is the degree of suspicion that
attaches to particular types of corroborated non-criminal acts and whether
the informant provides details which are not easily obtained. The purpose
of the inquiry is to determine if the informer’s statements regarding
non-incriminatory facts indicate familiarity with the implicated individual
or the alleged criminal activity that would allow an inference that the
informer’s allegations of criminal activity are reliable.
(Emphasis in original). The warrant application in this case does not indicate how the CS
obtained information that Crystal was growing marijuana at her residence or supplying
marijuana to Jefferies. Only two of the facts corroborated by Barnes relate to the Kants:
(1) Crystal’s cell phone number, and (2) the vehicle from which the unidentified person
emerged at Jefferies’ house was registered to Kant. The application does not allege that
the CS was “familiar” with the Kants or, for that matter, that the CS ever even interacted
with the Kants.
¶29 “[C]orroboration must consist of more than merely innocent, public information.”
State v. Tackitt, 2003 MT 81, ¶ 34, 315 Mont. 59, 67 P.3d 295 (citing Griggs, ¶ 50).
Apparently, none of the majority has been party to a group text, but there are myriad
innocent ways that the CS could have obtained Crystal’s cell phone number from any
1
Although the warrant application does not identify Barnes as being the surveillant of the
unidentified person, I agree with the majority that “it is reasonable to conclude . . . that Barnes
was the surveillant.” Opinion, ¶ 23.
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number of people, including Jefferies, without ever interacting with Crystal in any
manner, legal or illegal. The fact that the CS had Crystal’s cell phone number bears no
weight on the CS’s reliability regarding a marijuana grow operation in Crystal’s home.
Likewise, Barnes’ corroboration of Jefferies’ and Harrison’s addresses and vehicle
information does not lend weight to the reliability of the CS’s tip that Crystal was
growing and distributing marijuana. According to the CS, she and Harrison are
roommates; so as far as that information goes, the corroboration consisted of the CS’s
knowledge of her own address. More to the point, the information regarding Jefferies’
and Harrison’s addresses and vehicle information bears no relation to the Kants.
¶30 I also would not find the CS’s reliability bolstered by her admission to using drugs
with Jefferies and trading prescription drugs with Jefferies in exchange for marijuana.
While this might bolster the CS’s credibility if the goal was to search Jefferies’ home,
none of the CS’s self-incriminating admissions were related to the crime at issue in this
case or implicated the CS in any way into the investigation of the Kants.
¶31 I also must disagree with the majority’s conclusion that Barnes’ observation of an
unidentified individual driving Kant’s vehicle to Jefferies’ house supports a finding of
probable cause to search the Kant’s residence. The suspicion that results from police
corroboration of otherwise innocent information “must reveal a pattern of human
behavior associated with the alleged criminal activity, or a particular activity necessary to
carry out the alleged criminal activity, or activities which, when viewed as a whole, are
consistent with the alleged criminal activity.” Griggs, ¶ 46. According to the warrant
application, the CS “stated that Crystal Kant brings marijuana to Vicki Jefferies every
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Wednesday around 7:00 pm.” This was corroborated by Barnes’ observation that “on
Wednesday, January 7, 2015, at 6:43 p.m., a vehicle bearing a license plate registered to
Kant was seen arriving at Jefferies’ home[,]” and “[a] single unidentified occupant exited
the vehicle and entered the home.” Opinion, ¶ 7. There is no indication that the
individual emerging from the vehicle was Crystal, or even that the individual was female.
Nothing in the warrant application indicates that the unidentified individual was carrying
anything into the house, let alone a suspicious package. Nor does the application state
how long the unidentified individual remained at Jefferies’ residence, whether he or she
emerged empty-handed after entering with a package, or whether there were other
individuals at Jefferies’ home at the time.
¶32 If the unidentified individual entered Jefferies’ home carrying a package of some
sort and emerged empty-handed minutes later, this may fairly be considered
corroboration of criminal activity. On the other hand, if the unidentified individual
entered Jefferies’ home carrying a bottle of wine and a Bundt cake and emerged
empty-handed two hours later, this is pretty solid corroboration of a previously scheduled
dinner party. Therein lies the problem. Either of these scenarios is equally supported by
the facts—or more precisely, lack thereof—asserted “within the four corners of the
application.” Reesman, ¶ 24.
¶33 Furthermore, law enforcement corroboration of an informant’s tip “must
independently test not only the veracity of the informant’s account itself . . . but also to
some measured degree provide the reviewing magistrate with a factual indication that
criminal activity has occurred and that contraband may be found in a particular place.”
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Griggs, ¶ 28 (emphasis added). Accord Barnaby, ¶ 29 (“[T]he issuing judicial officer
must make a practical, common sense determination, given all the evidence contained in
the application for a search warrant, whether a fair probability exists that contraband or
evidence of a crime will be found in a particular place.”). As discussed above, the
warrant application does not state how the CS obtained information that Crystal was
growing marijuana at her house. The application does not indicate whether the CS even
knew the location of the Kant’s residence. Moreover, the CS’s statements provided in the
application were inconsistent as the CS both stated that Crystal was growing marijuana at
her residence, which is located in Livingston, and that Crystal “was bringing marijuana to
Livingston.” Finally, there was no independent verification of the location of the
marijuana grow operation, or an independent indication that marijuana and drug
paraphernalia would be found at the Kant’s residence.2
¶34 The entire sum and substance of what the majority determines provides a
substantial basis for concluding there was a probability of criminal activity is a CS who
provided the following information: two home addresses, one of which was the CS’s own
address, and neither of which was the subject of the search warrant; information
regarding vehicles owned by two individuals, neither of whom were the Kants; Crystal’s
cell phone number which could have been obtained in any number of innocent ways; and
an allegation that Crystal delivered marijuana to Jefferies’ home every Wednesday at
approximately 7:00 p.m., which was then corroborated by an observation of a male or
2
The majority does not base its decision on either of the reports that Kant challenged as too stale
to be considered; therefore, my analysis does not consider them either.
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female of unknown description, arriving at Jefferies’ home in a car registered to Kant
near 7:00 p.m. on the Wednesday following the tip, but with no other facts regarding the
circumstances of that single visit from which could be inferred criminal activity.
Assuming this constitutes corroboration of the CS’s information, the question remains:
Corroboration of what? As noted above, “corroboration must consist of more than
merely innocent, public information.” Tackitt, ¶ 34 (citing Griggs, ¶ 50).
¶35 For the foregoing reasons, I dissent.
/S/ JAMES JEREMIAH SHEA
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