No. 12716
I N THE SUPREME C U T O THE STATE O MONTANA
OR F F
1974
T E STATE O MONTANA,
H F
p l a i n t i f f and Respondent,
-vs -
STEVEN THORSNESS,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
.
Honorable C B. Sande, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
Towe, Neely and B a l l , B i l l i n g s , Montana
Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
Montana
Arnold A. Berger argued, B i l l i n g s , Montana
For Respondent :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
Thomas A. Budewitz, A s s i s t a n t Attorney General, argued,
Helena, Montana
Jack Yardley, County Attorney, appeared, L i v i n g s t o n ,
Montana
Edward P. McLean, Deputy County Attorney, argued,
tr&agep, Montana
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Submitted : September 23, 1974
Decided : NOV 14 7974
Filed: p. ?
m: j
No. 12793
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1974
STATE O M N A A e x rel.
F OTN
STEVEN SCOTT THORSNESS,
Relator,
THE DISTRICT COURT O THE FOURTH
F
JUDICIAL DISTRICT O THE STATE O
F F
MONTANA, and t h e Honorable J a c k L.
Green, a s P r e s i d i n g Jude t h e r e o f ,
Respondents.
O r i g i n a l Proceeding :
Counsel o f Record:
For R e l a t o r :
B e r g e r , Anderson, S i n c l a i r and Murphy, B i l l i n g s , Montana
Arnold A. B e r g e r a r g u e d , B i l l i n g s , Montana
R o b e r t Campbell, Missoula , Montana
F o r Respondents :
Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a ,
Montana
Thomas A. Budewitz, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
J a c k Y a r d l e y a p p e a r e d , County A t t o r n e y , L i v i n g s t o n ,
Montana
Edward P. McLean, a r g u e d , Deputy County A t t o r n e y ,
L i v i n g s t o n , Montana
Submitted : September 23, 1974
Decided :
Filed:
Mr. J u s t i c e Frank I . Haswell d e l i v e r e d t h e Opinion of t h e C o u r t .
T h i s o p i n i o n combines t h i s C o u r t ' s d e c i s i o n s i n S t e v e n
S. T h o r s n e s s ' p e t i t i o n f o r w r i t of s u p e r v i s o r y c o n t r o l and h i s
a p p e a l from t h e r e v o c a t i o n of d e f e r r e d i m p o s i t i o n of s e n t e n c e .
Although t h e p e t i t i o n and t h e a p p e a l were f i l e d s e p a r a t e l y , t h e y
were combined f o r argument and w i l l be handled t o g e t h e r h e r e ,
s i n c e t h e y a r i s e from t h e same o r r e l a t e d f a c t s .
I n 1972, S t e v e n S. T h o r s n e s s p l e a d g u i l t y t o a c h a r g e of
p o s s e s s i o n of dangerous d r u g s . I m p o s i t i o n o f s e n t e n c e was d e f e r r e d
f o r two y e a r s "under t h e u s u a l c o n d i t i o n s , and i n a d d i t i o n , t h e
c o n d i t i o n t h a t t h e d e f e n d a n t s e r v e f o u r months i n t h e S t a t e P r i s o n
* * *". T h o r s n e s s s e r v e d t h a t t i m e , was r e l e a s e d , and p l a c e d on
probation. The r u l e s g o v e r n i n g h i s p r o b a t i o n i n c l u d e d t h e u s u a l
r e q u i r e m e n t s t h a t he r e s p e c t and obey t h e l a w ; s e c u r e p e r m i s s i o n
b e f o r e t r a v e l i n g from h i s a s s i g n e d d i s t r i c t ; a n d , " n o t b u y , s e l l ,
u s e , o r be i n t h e p o s s e s s i o n of d a n g e r o u s d r u g s " .
On August 1, 1973, T h o r s n e s s t r a v e l e d from B i l l i n g s ,
Montana, t o M i s s o u l a , Montana, where he was a r r e s t e d t h e n e x t day.
The ground f o r t h e a r r e s t w a s v i o l a t i o n of t h e t r a v e l r e s t r i c t i o n s
contained i n t h e probation r u l e s . A s h o r t time a f t e r t h e a r r e s t ,
a s e a r c h w a r r a n t was p r o c u r e d and T h o r s n e s s ' a u t o m o b i l e and p e r -
s o n a l e f f e c t s were s e a r c h e d .
Q u a n t i t i e s of d a n g e r o u s d r u g s were found and T h o r s n e s s
w a s t h e n c h a r g e d w i t h p o s s e s s i o n of t h o s e d r u g s . A motion t o
s u p p r e s s was f i l e d , h e a r d and d e n i e d . T h o r s n e s s now p e t i t i o n s
t h i s Court f o r a w r i t of s u p e r v i s o r y c o n t r o l , d i r e c t i n g t h e
d i s t r i c t c o u r t t o s u p p r e s s t h e e v i d e n c e s e i z e d under t h e w a r r a n t .
On December 3 , 1973, f o l l o w i n g p e t i t i o n and h e a r i n g , t h e
d i s t r i c t c o u r t of P a r k County revoked t h e d e f e r r e d i m p o s i t i o n of
s e n t e n c e o n t h e 1972 c h a r g e , and s e n t e n c e d T h o r s n e s s t o f o u r y e a r s
i n the s t a t e prison. T h a t judgment and s e n t e n c e i s a l s o a p p e a l e d
here.
- 2 -
In his petition for writ of supervisory control, Thorsness
alleged the search which produced the drugs was conducted under
an improper warrant. He contends that insufficient probable
cause was demonstrated to the magistrate to support the issuance
of a search warrant.
Where, as here, there is no evidence of probable cause
other than that contained in the affidavit, we are confined to
that document alone for a finding of probable cause. Petition of
Gray, 155 Mont. 510, 473 P.2d 532.
In this case the establishment of probable cause suffi-
cient to authorize the issuance of a search warrant, turns on
the statement in the affidavit that a "source of known reliability"
told police that Thorsness would be traveling through Missoula
with cocaine and other drugs in his possession on August 1, 1973.
The quantum of information necessary to permit the use of such
hearsay in establishing probable cause was set forth in Aguilar
v. Texas, 378 U.S. 108, -d? S.Ct. 1509, 12 L ed 2d 723, 729:
"Although an affidavit may be based on hearsay
information and need not reflect the direct
personal observations of the affiant, Jones v.
United States, 362 U.S. 257, 4 L ed 2d 697, 80
S.Ct. 725, 78 ALR2d 233, the magistrate must be
informed of some of the underlying circumstances
from which the informant concluded that the
narcotics were where he claimed they were, and
some of the underlying circumstances from which
the officer concluded that the informant, whose
identity need not be disclosed, [citing case],
was 'credible' or his information 'reliable'.
* * *" [Emphasis supplied]
The affidavit here contains no underlying circumstances
upon which the informant based his conclusion that Thorsness
would be traveling through Missoula with cocaine or other drugs
in his possession on August 1. The affidavit contains no state-
ment as to how the informant received his information. It can-
not be determined if the informant came by his information dir-
ectly or whether he merely relied upon rumor or reputation.
The deficiency here is similar to that found in Spinelli
v. U.S., 393 U.S. 410, 416, 89 S.Ct. 584, 21 L ed 2d 637, where
the Court said:
" * * * The tip does not contain a sufficient
statement of the underlying circumstances from
which the informer concluded that Spinelli was
running a bookmaking operation. We are not
told how the FBI's source received his infor-
mation--it is not alleged that the informant
personally observed Spinelli at work or that he
had ever placed a bet with him. Moreover, if
the informant came by the information indirectly,
he did not explain why his sources were reliable.
Cf. Jaben v. United States, 381 U.S. 214 (1965).
In the absence of a statement detailing the
manner in which the information was gathered,
it is especially important that the tip describe
the accused's criminal activity in sufficient
detail that the magistrate may know that he is
relying on something more substantial than a
casual rumor circulating in the underworld or
an accusation based merely on an individual's
general reputation."
Accordingly, the writ of supervisory control should
issue, and the evidence seized should be suppressed in any
future prosecution for possession of those drugs.
We now determine whether such evidence was properly con-
sidered in revoking the deferred imposition of sentence. Thorsness
urges, in substance, that illegally seized evidence cannot be
used in any criminal proceeding affecting a man's liberty.
Section 95-2206, R.C.M. 1947, grants the court the dis-
cretionary power to defer imposition of sentence. State ex rel.
Woodbury v . District Court, 159 Mont. 128, 495 P.2d 1119. In the
absence of an abuse of discretion, the statute expressly permits
revocation of that deferral. Since no abuse of discretion is
alleged, we must determine whether the evidence which moved that
discretion was properly before the court.
There is no doubt, on the basis of this record, that
Thorsness' revocation was predicated on his possession of danger-
ous drugs, not on his violation of travel restrictions. The
question thus is whether the exclusionary rule mandated by Mapp
v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L ed 2d 1081, applies to
hearings on revocations of deferred impositions of sentences.
Analysis of this question requires that the reason for
the exclusionary rule be kept in mind. The United States Supreme
Court in Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct.
1437, 4 L ed 2d 1669, said:
" * * * The rule is calculated to prevent,
not to repair. Its purpose is to deter--to
compel respect for the constitutional guaranty
in the only effectively available way--by
removing the incentive to disregard it."
Applied to the particular facts of the instant case, the
question must be: Would the exclusion of the illegally seized
drugs at Thorsness' revocation hearing deter the state from
similar illegal seizures in the future? Not at all.
The illegality of this seizure was that it was conducted
under a defective warrant. The error was not of an'bfficer en-
gaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed.
436, 440. Rather, the fatal error was that of the issuing judi-
cial officer. Since we have already ruled that the evidence is
inadmissible in a prosecution for its possession, we find little
additional deterrent value in denying its &admissibility in the
revocation hearing.
The U. S. Supreme Court recently in United States v.
Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L ed 2d 561, 571, held:
"Despite its broad deterrent purpose, the
exclusionary rule has never been interpreted
to proscribe the use of illegally-seized evi-
dence in all proceedings or against all persons.
As with any remedial device, the application of
the rule has been restricted to those areas
where its remedial objectives are thought most
efficaciously served."
That Court has recognized a number of areas where the remedy is
too ineffective to warrant its application. Standing to invoke
the rule has been limited to cases in which the government
seeks to use the illegally seized evidence against the victim
of the unlawful search. Brown v. United States, 411 U.S. 223,
93 S.Ct. 1565, 36 L ed 2d 208. The rule does not apply to ex-
clude use of such evidence to discredit a defendant's voluntary
testimony. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354,
98 L.Ed. 503. Illegally seized evidence may also be used in
grand jury proceedings. United States v. Calandra, 414 U.S. 338,
94 S.Ct. 613, 38 L ed 2d 561.
Since the rule is really a remedy, the universal appli-
cation of which is not dictated by the court which created it, we
find it inapplicable here. Here, it was the issuing magistrate
who erred. There is no evidence that use at the revocation hear-
ings was the intended use at the time of the issuance of the
warrant. As we have already ruled, the evidence is not admissible
in a prosecution for its possession. There would be only minimal
deterrent effect in denying its use at the revocation hearing.
There would, however, be a substantial interference with Montana's
probation process were we to impose this limitation upon it.
This view has ample support in other jurisdictions. See,
e.g. United States v. Hill, 447 F.2d 817 (7th Cir. 1971); united
States v. Allen, 349 F.Supp. 749 (N.D. Calif. 1972); People v.
Atencio, (Colo. 1974), 525 P.2d 461; People v. Dowery, 20 Ill.App.3d
738, 312 N.E.2d 682.
Accordingly, the revocation of Thorsness' deferred sentence
is affirmed; the order of the district court denying the motion to
suppress is reversed.
Justice
W e concur:
Chief J u s t i c e
. -
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Justices
Mr. J u s t i c e Wesley C a s t l e s d i d n o t p a r t i c i p a t e i n t h e s e h e a r i n g s ,