No. 82-358
IN THE SUPREME COURT OF THE STATE OF IdlONTAVA
1983
STATE OF YONTPNA,
P l a i n t i f f and A p p e l l a n t ,
-vs-
?!ARK EWER, a / k / a PIARK MAP.TIN,
D e f e n d a n t and R e s p o n d e n t .
APPEAL FRO]!: D i s t r i c t Court o f t h e F i f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f J e f f e r s o n ,
The H o n o r a b l e Mark P. S u l l i v a n , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
Hon. lmike C r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Yontana
J o h n P . Connor, J r . a r g u e d , County A t t a r n e y , B o u l d e r ,
FIontanB: Bob P e t e r s o n a r g u e d , Deputv County A t t y . ,
B o u l d e r , ?.lantana
F o r Respondent :
H a r l e n 8 Thompson; Shaun R . Thompson a r g u e d , H e l e n a ,
Montana
Submitted: O c t o b e r 1 3 , 1983
Decided: P J o v e m b e r 2 9 , 1983
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
The State of Montana appeals the July 30, 1982, order of
the District Court of the Fifth Judicial District, Jefferson
County, suppressing all evidence seized from the defendant's
residence in a search conducted on December 30, 1981. The
search was held to be illegal because the application for the
search warrant was found to have failed to establish probable
cause sufficient to justify a search of defendant, Mark
Erler's residence.
We find that the application for the search warrant did
contain sufficient probable cause to support the issuance of
the search warrant and reverse the order of the District
Court.
On December 29, 1981, Jefferson County Undersheriff Tom
Dawson was advised by Lewis and Clark County law enforcement
officers of a tip they had received indicating that marijuana
and cocaine would be entering Lewis and Clark County from the
Jefferson County residence of Mark Erler. Further, the drugs
were to be transported in a Chevrolet Malibu registered to a
Cynthia Olson, with license number 5-50069. Although the
informant was not identified, Lewis and Clark County officers
did state that they had received reliable information from
the same person on three previous occasions.
On the basis of the above information and his knowledge
that Erler's residence is located approximately two miles up
Basin Creek Road from U.S. Highway 91, Undersheriff Dawson
positioned a county deputy at the junction of the two roads.
At 10:37 p.m. December 29, 1981, the deputy observed the
above-described automobile entering Highway 91 from the Basin
Creek Road. Lewis and Clark County officers were so notified
and the Olson vehicle was stopped approximately one mile
inside the Lewis and Clark County line at 11:18 p.m. It had
travelled approximately 35 miles in 41 minutes. The
registered owner of the vehicle, her husband and Theresa Jo
Bennett were in the car, together with approximately one and
one-half pounds of marijuana.
Undersheriff Dawson then applied to a justice of the
peace for a search warrant to search Mark Erler's residence.
The application contained the information set forth above.
The warrant was issued and a search of the residence was
conducted in the early morning hours of December 30, 1981.
The search uncovered $2070 in cash, drug paraphernalia,
marijuana and other controlled substances. It is that
evidence which the State contends was erroneously suppressed
by the District Court.
To determine whether there was probable cause to issue
the instant search warrant, we must look only at the
information contained within the four corners of the search
warrant application. State v. Isom (1982), 196 Mont. 330,
641 P.2d 417. That information was given to Lewis and Clark
County officers by an informant and then relayed to Jefferson
County officers, whose subsequent investigation successfully
corroborated nearly all of the informant's allegations.
Prior to the United States Supreme Court's recent
decision of Illinois v. Gates (1983), U.S. -
1 -
S.Ct. -
1 - L.Ed.2d , 51 U.S.L.W. 4709 (No. 81-430,
June 8, 1983) , an informant's tip (and thus the information
in the application) had to meet the rigidly interpreted
"two-prong test" set forth in Aguilar v. Texas (1964), 378
U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, for determining
whether probable cause exists for issuing a search warrant
before the warrant would be valid. That test is:
1. The magistrate must be informed of some of the
circumstances underlying the informant's conclusions or his
"basis of knowledge"; and
2. The magistrate must be informed of some of the
circumstances underlying the officer's conclusions that the
informant was credible or his information reliable. Aguilar,
378 U.S. at p. 114, 84 S.Ct. at p. 1514, 12 L.Ed.2d at p.
729.
The Supreme Court in Spinelli v. United States (1969),
393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, then expanded
upon the Aguilar test to hold that a tip could contain
sufficient "self-verifying" detail to satisfy the "basis of
knowledge" requirement.
"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." Spinelli, 393 U.S. at p. 416, 89
S.Ct. at p. 589, 21 L.Ed.2d at p. 644.
The Spinelli case also indicated that a pre-~guilar
case, Draper v. United States (1959), 358 U.S. 307, 79 S.Ct.
329, 3 L.Ed.2d 327, remains the authority for determining the
veracity of an informant's tip. Thus, an officer's personal
verification, through corroboration of an informant's very
specific allegations, is sufficient circumstance to verify a
conclusion that the information is credible or reliable.
Spinelli, 393 U.S. at pp. 416-417, 89 S.Ct. at p. 589, 21
L.Ed.2d at p. 644.
In Illinois v. Gates, supra, however, the Supreme Court
abandoned the two-prong test set forth in Aguilar and
returned to a more traditional standard for determining
whether sufficient probable cause exists to issue a search
warrant on the basis of an informant's tip. The Gates test
involves a "totality of the circumstances" analysis and
incorporates the specifics set forth in Aguilar without
requiring that each and every element be proved before
probable cause can be found. The absurdly technical aspects
of the previous test are thus abandoned.
The magistrate must now simply "make a practical,
commonsense decision whether, given all the circumstances set
forth in the affidavit before him, including the 'veracity'
and 'basis of knowledge' of persons supplying heresay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place."
Illinois v. Gates, U.S. at p. , S.Ct. at p.
- L.Ed.2d at p. , 51 U.S.L.W. at p. 4716. Then,
the standard for the reviewing court is a return to the
concept set forth in Jones v. United States (1960), 362 U.S.
257 at p. 271, 80 S.Ct. 725 at p. 736, 4 L.Ed.2d 697 at p.
708, that the duty of a reviewing court is simply to ensure
that the magistrate had a substantial basis for concluding
that probable cause to issue a search warrant existed.
The probable cause requirement for the issuance of a
search warrant is found in the Fourth Amendment to the United
States Constitution: " . . . no warrant shall issue but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the
person or things to be seized;" and in Article 11, Section
Eleven of the Montana State Constitution: ". . . No warrant
to search any place, or seize any person or thing shall issue
without describing the place to be searched or the person or
thing to be seized, or without probable cause, supported by
oath or affirmation reduced to writing."
We find sufficient probable cause to issue the search
warrant in the instant case under either the Aguilar-Spinelli
test or the Gates test set forth by the United States Supreme
Court.
The Aguilar-Spinelli Test
Although the justice of the peace was never told the
informant's "basis of knowledge", the tip contained
sufficiently detailed information to enable the magistrate to
reach the determination that the tip was based on "something
more substantial than a casual rumor1'or "an accusation based
merely on [defendant's] general reputation." The informant
knew such details as the model of car which would be leaving
defendant's house carrying drugs, its license number and its
registered owner. That information is much too specific to
be considered part of a "casual rumor".
Further, the informant's specific information was
substantially corroborated by Jefferson County law
enforcement officers, thus verifying both the credibility of
the informant and the reliability of his information. The
information regarding the make of car, its license number and
its registered owner was corroborated, as was the allegation
that the car would contain a quantity of marijuana. The only
information not corroborated by the officers was that the car
would be coming from Mark Erler's residence. However, the
car was seen approximately two miles from defendant's
residence on the route which would usually be taken to Lewis
and Clark County from that residence. Together with the
corroboration of the other, very specific, details of the
tip, seeing Olson's car on that route was sufficient reason
for the justice of the peace to determine that there was a
probability that the car had come from Erler's residence and
to find probable cause to issue the warrant to search the
house.
The Gates Test
Since we have upheld the search warrant under the
Aguilar-Spinelli test, there is no doubt but that the warrant
is also valid under the less stringent test of Gates. Given
the specific details of the informant's tip and the officers'
ability to corroborate those details, there was substantial
basis for the justice of the peace to make the determination
that "there [was] a fair probability that contraband or
evidence of a crime" would be found at the residence of Mark
Erler.
The order of the District Court is reversed. The search
warrant is held to be valid and all evidence acquired as a
result of that warrant is admissible against the defendant,
Mark Erler.
We Concur:
Chief Justice
Mr. Chief J u s t i c e Frank I. Haswell, s p e c i a l l y concurring:
I c o n c u r i n t h e r e s u l t on t h e g r o u n d t h a t p r o b a b l e
cause e x i s t e d f o r i s s u i n g a search warrant under I l l i n o i s
v. G a t e s ( 1 9 8 3 ) , U.S. ' -S.Ct. -I - L.Ed.2d
, 5 1 U.S.L.W. 4709 (No. 81-430, Decided J u n e 8 , 1 9 8 3 ) .
-- ---
Chief J u s t i c e
Mr. J u s t i c e D a n i e l J. Shea and M r . J u s t i c e John C. Sheehy
d i s s e n t and w i l l f i l e w r i t t e n d i s s e n t s l a t e r .