NO. 88-307
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
1988
S T A T E O F MONTANA,
Plaintiff and Appellant,
-vs-
EDWARD SUNDBERG,
D e f e n d a n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E l e v e n 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 C o u n t y of F l a t h e a d ,
T h e H o n o r a b l e L e i f B . E r i c k s o n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Hon. M i k e G 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 , Montana
C l a y R. S m i t h , A s s t . A t t o r n e y G e n e r a l , H e l e n a
T e d Lympus, C o u n t y A t t o r n e y ; Ed C o r r i g a n , D e p u t y ,
K a l i s p e l l , Montana
For R e s p o n d e n t :
G a r y G. Doran, K a l i s p e l l , Montana
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S u b m i t t e d on B r i e f s : Oct. 13, 1 9 8 8
Decided: December 8, 1988
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The Attorney General of the State of Montana appeals
from an order of the District Court, Eleventh Judicial
District, Flathead County, suppressing evidence seized from
respondent's residence pursuant to a search warrant issued
December 14, 1987. The question presented to this Court is
whether probable cause existed for issuance of the search
warrant under the totality of the circumstances, and whether
the subsequent suppression of the evidence was appropriate.
We reverse.
Although the informant in this case now recants the
information given to a Flathead County Sheriff's Dectective,
the facts from the record indicate the following: On
December 14, 1987, Sergeant Rick Hawk of the Flathead County
Sheriff's Office applied for issuance of a search warrant
from the Flathead County Justice Court. The application
stated that on December 11, 1987, Hawk interviewed a
confidential informant who had advised him that Ed Sundberg
of Whitefish and another man in Columbia Falls were both
growing marijuana in their respective residences. The
informant stated that he knew this because he had been in
both residences within the past ten days and had observed
growing marijuana. The informant then described each
marijuana grower as to height, weight, age and hair color.
In addition, informant described the make and year of
Sundberg's car, his place of employment, the name and maiden
name of his ex-wife; and told Sergeant Hawk that Sundberg
lived with his ex-wife's grandmother in her parents' house in
Whitefish. Informant revealed that Sundberg grew marijuana
in the attic which could be reached by a trap door in h i s
bedroom. This informant stated that he did not know the
addresses of the suspects' homes; but, accompanied by
Sergeant Hawk and Dectective Glen Fulton, he went to the
homes. Parked at the home of the unnamed suspect was a 1 9 8 7
black Nissan pickup with a Montana license registered to Ed
Sundberg.
Sergeant Hawk corroborated informant's information
through public records. The information was all correct and
verified. Hawk's inquiry revealed that one suspect was born
in Detroit, Michigan on June 1, 1945; and that he had a
criminal record including drug offenses which started in
1969. The latest offense was sale of dangerous drugs in
Flathead County in 1 9 8 1 . That charge was reduced to
Possession of Dangerous Drugs, a felony, for which he was
placed on probation for two years. He listed his employment
with the Probation Department as the Burlington Northern
Railroad. To corroborate this information Sergeant Hawk
obtained public records which showed that Ed and Denise
Sundberg lived at the address in Whitefish that informant had
taken the officers to and that the Sundbergs did not own the
home. It further revealed that Ed Sundberg and the other
suspect, whom informant had named, were arrested together in
Regina, Saskatchewan, Canada in 1 9 7 7 for operating a gaming
house.
The informant is a self-admitted marijuana user. This
declaration against interest is significant to the probable
cause issue and will be discussed later.
The above facts plus corroborated facts about the other
suspect were all included in the search warrant application.
The record does not indicate any additional facts presented
to the Justice Court in connection with the issuance of the
search warrant. A justice of the peace found the affidavit
sufficient to show probable cause and issued the warrant on
December 14, 1 9 8 7 .
A search of Sundberg's residence resulted in the seizure
of nineteen 14-inch marijuana plants and materials used to
cultivate marijuana. The bedroom described in the other
suspect's home was empty.
Informant's identity became known to Sundberg, and
informant was subpoenaed to give testimony in the presence of
Sundberg. Informant then denied. giving the incriminating
information to Sergeant Hawk.
Sundberg made a motion to suppress the evidence seized
on the grounds that first, the application supporting the
search warrant contains untrue statements; and, second, that
the application fails to show probable cause to support the
issuance of a search warrant. The District Court found that
the second argument, insufficient probable cause, provided
an adequate basis to suppress the evidence and did not
proceed any further with defendant's argument. Therefore,
the sole issue before this Court is whether the District
Court erred in suppressing the evidence for lack of probable
cause.
The Fourth Amendment states:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
In Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6
L.Ed.2d 1081, the United States Supreme Court created the
exclusionary rule as a mechanism to deter police violations
of Fourth Amendment search and seizure provisions while Ker
v. California (1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d
726, applied the restrictive Fourth Amendment standards for
searches by federal agents to the states. This rule
prohibits the presentation in court of evidence which has
been seized by law enforcement officers in violation of the
Fourth Amendment.
In the case at bar Sergeant Hawk took reasonable
precautions and made serious effort to comply with Fourth
Amendment requirements when he corroborated the information
given him voluntarily by the confidential informant.
To determine whether there was probable cause to issue
the search warrant we must look only at information contained
in the four corners of the application. State v. Jensen
(Mont. 19851, 704 P.2d 45, 42 St.Rep. 1191; State v. Isom
(1982), 196 Mont. 330, 641 P.2d 417. In Jensen, this Court
decreed that the test for determining probable cause for
issuance of a search warrant is 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.
Probable cause to justify search warrants is a
sufficient showing that incriminating items, namely items
reasonably believed to be connected with criminal behavior,
are located on the property to which entry i s sought.
. It
does not require that the occupant be guilty of any offense
and need only be supported by probable cause to believe that
the items sought will be found in the place to be searched
and that these are seizable by being adequately connected
with criminal behavior. Zurcher v. Standford Daily (1978),
436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525. Probable cause,
defining the point at which the individual's interest in
privacy must yield to the governmental. interest in
investigating criminal behavior by searching for
incriminating items, is a practical, nontechnical concept of
criminal procedure, in effect amounting to the best
compromise that has been found for accommodating often
opposing interests, on the one hand. the interest of the
citizen to be protected from unreasonable intrusions on his
privacy and security, and on the other the interest of the
community to be adequately protected by efficient law
enforcement. Brinegar v. United States (19491, 338 U.S. 160,
69 S.Ct. 1302, 93 L.Ed. 1879. "Requiring more would unduly
hamper law enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the officers' whim or
.
caprice." See Brinegar, at 176. " . . ' [PIrobable cause'
means less than evidence which would justify
condemnation. .. " Locke v. United (1813), 7 Cranch 339,
347, 3 L.Ed 338, 347. "Probable cause" is not a prima facie
showing of criminal activity, but only its probability.
Spinelli v. United States !1969), 393 U.S. 410, 419, 89 S.Ct.
584, 21 L.Ed.2d 237. Considerably less evidence is required
for the issuance of an arrest or search warrant than for
conviction; and legally unimpeachable findings of probable
cause can rest upon evidence, for instance hearsay, which is
not legally admissible at the criminal trial itself. United
States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13
L.Ed.2d 684; Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct.
1509, 12 L.Ed.2d 723; Jones v. United States (1960), 362 U.S.
257, 80 S.Ct. 725, 4 L.Ed.2d 697.
The Supreme Court has never required either (in the case
of arrest) that guilt should be more probable than not or (in
the case of search and seizure) that it should be more
probable than not that the seizable items will be found where
they are thought to be. The Court summed up its attitude in
Brinegar, supra: "In dealing with probable cause ...we
deal with probabilities. These are not technical; they are
factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act. . . " 338 U.S. at 175.
Prior to Gates, courts, including the Montana Supreme
Court, used the two-pronged Aguilar-Spinelli test. This test
looked at the basis of knowledge and the veracity of the
informant. Montana has adopted the less stringent "totality
of the circumstances" Gates test. State v. O'Neill (1984),
208 Mont. 386, 679 P.2d 760. It replaces the two-pronged
Aguilar-Spinelli test. State v. Hendrickson (Mont. 1985),
701 P.2d 1368, 42 St.Rep. 981.
In applying the Gates test we hold that the information
contained in Sergeant Hawk's affidavit satisfies the probable
cause test set forth in Gates. The affidavit particularly
stated the place where the contraband could be found, the
kind of drugs involved, an accurate description of the
defendant, his marital status, his ex-wife's name and maiden
name, an accurate description of the defendant's car, an
accurate description of the wattage of the cultivation lights
used to grow the marijuana, and an admission against
informant's interest. Admissions against interest are
sufficient to establish probable cause, even though related
through a hearsay source. State v. Paschke, (1974), 165
Mont. 231, 527 P.2d 569; United States v. Harris (1971), 403
U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.
Accordingly, this affidavit was sufficient not only
under the totality of the circumstances test, but also
because the informant admitted his marijuana use. This was
an admission against penal interest by reason of the fact
that 5 45-9-102, MCA, makes it a criminal offense to possess
marijuana. In Harris, supra, the warrant's affiant recited
extrajudicial statements of a declarant who feared for his
life and safety if his identity were revealed. These
statements were against the informant's penal interest. The
Supreme Court said, "Common sense in the important daily
affairs o : life would induce a prudent and disinterested
f
observer to credit these statements. People do not lightly
admit a crime and place critical evidence in the hands of the
police in the form of their own admissions. Admissions of
crime, like admissions against proprietary interests, carry
their own indicia of credibility--sufficient at least t.o
support a finding of probable cause to search. That the
informant may be paid or promised a "break" does not
eliminate the residual risk and oppobrium of having committed
criminal conduct . . ." Harris, 403 U.S. at 583, 584.
Respondent further argues that the "totality of the
circumstances" test coupled with the Aguilar-Spinelli test
was correctly applied by the District Court. The record
shows that the District Court based its decision on a belief
that the informant's information was hearsay information.
The informant stated that he had been in the Sundberg home
within the last ten days and had seen the marijuana growing.
We do not agree that this constitutes hearsay evidence. It
is first-hand evidence. Nor do we agree that Sergeant Hawk
had no reason to trust the veracity of this informant. An
informant in custody, who makes a voluntary admission against
interest is in an excellent position to give law enforcement
officers the information needed to discover covert criminal
activity. The average citizen seldom has occasion to observe
criminal activity such as drug use or marijuana growing. A
criminal or imprisoned informer often has this kind of
information and is therefore believable because he may
associate with criminals himself. And yet, the criminal
informant is not considered as reliable and believable as a
citizen informant. The reliability of a marijuana user to
know where marijuana is grown is of great probability.
Based on the above analysis, the "totality of the
circumstances" from the face of Serqeant Hawk's affidavit
clearly supports probable cause. The magistrate approved
that affidavit from its four corners. When a search warrant
has been issued, the determination of probable cause must be
made solely from the information given to the impartial
magistrate and from the four corners of the search warrant
applications. State v. OINeill (1984), 208 Mont. 386, 679
P.2d 760; State v. Isom (1982), 196 Mont. 330, 641 P.2d 417;
Thomson v. Onstad (1979), 182 Mont. 119, 594 P.2d 1137. In
O'Neill this Court quoted United States v. Ventresca, supra,
saying that 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. "Ventresca, also
requires reviewing courts to avoid hypertechnical
interpretations of warrant applications and, in doubtful or
marginal cases, to resolve the issue with the preference for
warrants in mind.'' OINeill, at 764.
In Ventresca, the Court said, "While a warrant may issue
only upon a finding of 'probable cause,' this Court has long
held that 'the term "probable cause". . . means less than
evidence which would justify condemnation,'" Ventresca, at
107, quoting Locke, supra, and that "the finding of 'probable
cause' may rest upon evidence which is not legally competent
in a criminal trial." Ventresca, quoting Draper v. United
States, 358 U.S. 307, 311.
The issuing magistrate need only determine that there is
a probability, not a prima facie showing of crimina-l
activity. O'Neill, supra, quoting Beck v. Ohio (1964), 379
U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Sergeant Hawk's
affidavit contained information that would have indicated to
the magistrate that there was a fair probability that
contraband would be found at both residences. It stated that
one of the men had a criminal record that included drug
offenses which started 18 years ago in 1969. In 1981 he was
charged with the sale of dangerous drugs in Flathead County.
That charge was reduced to Possession of Dangerous Drugs, a
felony, for which he was placed on probation for two years.
Sundberg's Nissan pickup, exactly as described by the
informant was parked in front of that suspect's residence
when the informant took the police to show them the homes.
The totality of these circumstances would lead any
reasonable magistrate to the conclusion that the affidavit
which recited these facts contained a substantial basis that
probable cause to search the two premises was present. The
District Court erred in holding otherwise. The corroborating
evidence found by the law enforcement officers to support the
informant must be seen and weighed not in terms of library
analysis by scholars, but as understood by those versed in
the field of law enforcement. O'Neill, supra; United States
v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 T..Ed.2d
621.
It is important to note that after-the-fact scrutiny by
the reviewing court of the sufficiency of an affidavit should
not take the form of - -
de novo review. O'Neill citing Gates,
462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. The
magistrate's determination of probable cause should be paid
great deference by reviewing courts. Gates, supra, Spinelli
v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637.
The burden of proof is on the defendant to show that
search and seizure were unlawful. Section 46-13-302(4), MCA.
The defendant has not met this burden.
Accordingly, the items described in the search warrant
and seized will not be suppressed. Additionally, the other
items seized, which are mainly items used in the cultivation
of marijuana, will not. be suppressed. In State T I . (luigg
(1970), 155 Mont. 119, 467 P.2d 692, this Court said that
items or things other than those described in the warrant may
be seized so long as a reasonable relationship between the
search authorized by the warrant and the seizure of the thing
not described is demonstrated.
Defendant argues finally that all the information
contained in the affidavit was unreliable and misstated.
However, a more objective interpretation of the facts stated
in the affidavit suggests that contraband was present at both
residences. The fact that contraband was found only in the
Sundberg residence and not in the other described residence
does not diminish the rationality of this conclusion.
For the foregoing reasons, the order of the District
Court is reversed and the cause remanded for further
proceedings.
e
J' tice
us
We concur:
A