IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WILLIAM LEE SEAMAN ,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Deirdre Caughlan; Dunlap & Caughlan, Butte, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Kathy Seeley, Asst. Atty. General, Helena
Robert M. McCarthy, County Attorney; William O'Leary,
Deputy County Atty., Butte, Montana
Submitted on Briefs: Feb. 16, 1989
Decided: March 30, 1989
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal arises from the conviction for possession of
dangerous drugs of appellant William Seaman in the Second
Judicial District, Silver Bow County. We affirm.
Issues
(1) Whether the p o l i c e lacked p r o b a b l e c a u s e t o search
Seaman's residence?
(2) Whether the search of Seaman's residence was overly
intrusive?
(3) Whether police testimony constituted grounds for
declaring a mistrial?
(4) Whether the speed with which the jury delivered its
verdict demonstrates the jury did not follow or read the
instructions, consider the evidence or follow their charge?
Facts
Undersheriff Joe Lee told Detective John Walsh that
three reliable informants had provided information indicating
a probability that Seaman was engaged in illegal activity.
All three informants told Lee that Seaman was selling heroin
in Butte for $ 4 0 . 0 0 a "bag". One of the informants gave
police a list of individuals who had purchased heroin from
Seaman. Another of the informants provided a description and
address for Seaman's residence, and stated that Seaman
currently possessed a quantity of heroin and opium at that
residence.
The first informant gave information on Seaman's
activities on December 29, 1987. The second informant
revealed information on Seaman on January 7, 1988. The third
spoke to police on January 21, 1988, concerning the sale of
heroin by Seaman.
Lee communicated the information from the informants to
Detective Walsh. Walsh incorporated this information in his
Application for Search Warrant to Justice of the Peace M. A.
Bartholomew on Januarv 21, 1988. The application also
included sworn statements by Detective Walsh that: the
informants had provided reliable information to law
enforcement officials in the past; that the activities
described were consistent with information possessed by Butte
officials on the drug trade currently and for the past ten
years in Butte; and that a check with Mountain Bell Telephone
Company and Montana Power Company indicated the presence of
Seaman's wife, Lorraine Seaman, at the residence on 1117
Maryland Avenue, Butte, Montana.
On January 21, 1988, Justice of the Peace Bartholomew
found from the application that probable cause existed for
issuing a warrant authorizing a search of the residence on
1117 Maryland Avenue, Butte, Montana. On the same dav
Detective Walsh and several other officers went to the home
and executed the warrant. Lorraine Seaman and her seven year
old son answered to Walsh's knock on the door, and Walsh and
the other officers entered after informing Mrs. Seaman that
they possessed authority to search.
Evidence presented at trial revealed the following:
Walsh "secured" the area by walking through the house with
his gun drawn and pointed at an angle toward the floor. He
first encountered Mrs. Seaman's father, Harry Nvgard, who had
come to the house that day to perform repairs on the freezer.
Mr. Nygard and the Seaman youngster were ordered by police to
sit on a bed located in the house while police continued the
search. Walsh discovered the defendant in the bathroom after
hearing the toilet flush. He ordered Seaman out of the
bathroom and searched the area. In a basket on top of the
washing machine Walsh found syringes filled with a brownish
liquid. Walsh also found a small container holding a dark
tar-like substance in an open towel cabinet in the bathroom.
Both substances were identified at trial by a state's witness
as heroin. Walsh also found items suspected to be drug
paraphernalia.
Seaman asked Walsh what he was looking for directly
after or during the time Walsh searched the bathroom. Walsh
replied, "heroin," and Seaman responded, "you got me."
During the search Mr. Nyqard collapsed from an apparent
heart attack. Police officers called for an ambulance and
attempted to revive Mr. Nygard. Mr. Nygard was taken to the
hospital and died later that night.
Seaman contends that under the constitutional
requirements prohibiting unreasonable searches and seizures,
and under S 46-5-202 (b), MCA, requiring facts sufficient to
demonstrate probable cause prior to issuance of a warrant,
the District Court erred in denying his suppression motion.
There are several contentions advanced by Seaman under this
issue. First, he contends Undersheriff Lee rather than
Detective Walsh should have sworn to the information in the
application. See State ex rel. Sanford v. District Court
( 1 9 7 6 ) , 170 Mont. 196, 551 P.2d 1005. In Sanford this Court
ordered suppression of evidence generated through a warrant
issued to "any Peace Officer of this State."
Seaman also contends that the totality of the
circumstances fails to support a finding of probable cause.
Seaman further argues that the lower court should have
ordered the State to reveal the identities of the informants,
and that the search was overly intrusive because abusive
police conduct resulted in the death of Harry Nygard.
A. The applicability - Sanford: Seaman contends that
of
Sanford mandated exclusion of the evidence from the search.
The warrant was defective in Sanford because section 95-703
R.C.M.1947, now 46-5-201, MCA, requires that a search
warrant be directed to - peace officer.
a As explained in
State v. Snyder (1975)(Daly, J . , concurring), 168 Mont. 220,
231, 541 P.211 1204, 1210, the mandate that the warrant be
directed to a particular officer accords with the plain
language of the statute, and with the mandate of another
statute; section 95-707 R.C.M.1947, now § 46-5-205, MCA, that
the warrant be served by one of the officers mentioned in its
direction. In this case, Walsh applied for the warrant, the
warrant named VJalsh, and Walsh served the warrant. Thus, the
police in this case followed the statutory procedure, and
Sanford is inapplicable.
B. The totality - - circumstances:
of the In State v.
Sundberg (Mont. 1988), 765 P.2d 736, 45 St.Rep. 2235, this
Court discussed the requirements for finding probable cause
from an application for a warrant:
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 is 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.
[citation omitted] 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 . "Probable
cause" is not a prima facie showing of criminal
activity, but only its probability. [citation
omitted] 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.
Sunberg, 765 P.2d at 738.
Under the totality of the circumstances test, the
veracity, reliability, and basis of knowledge of informants
remains highly relevant to determining probable cause from
the reports of such informants. Gates, 462 U.S. at 230.
Seaman contends that the double hearsay nature of the
information contained in the application, coupled with the
lack of information on the reliability of the informants,
demonstrates lack of probable cause under the totality of the
circumstances test.
The hearsay nature of the link between information
provided by Undersheriff Lee to Detective Walsh does not
invalidate the finding of probable cause in this case:
Observations of fellow officers of the Government
engaged in a common investigation are plainly a
reliable basis for a warrant applied for by one of
their number.
lJnited States v. Ventresca (1965), 380 U.S. 102, 111, 85
S.Ct. 741, 747, 13 L.Ed.2d 684. To enable the magistrate to
make an independent probable cause determination, and to meet
the requirement of particularity, it is:
sufficient if the affidavit recites at the outset,
or if it is clear from reading the affidavit as a
whole, that it is based in part upon information
obtained from other law enforcement officers.
United States v. Kirk (11th Cir. 1986), 781 F.2d 1498, 1505.
Walsh swore that the information in the application had been
provided to "Butte Law Enforcement Agency Detectives". Thus,
the application demonstrates that Walsh relied on information
provided by other officers.
Seaman also objects to the application on the grounds
that the informants were not shown to be reliable. We hold
that the application sufficiently shows the informants1
reliability and basis of knowledge. Walsh swore that the
informants had provided reliable information in the past. He
also stated in the application that one of the informants had
extensive knowledge of the drug trade in Butte. The
informants described the same criminal conduct on the part of
Seaman, e.g., selling heroin in "bags" for $40.00 each over a
period of three weeks prior to issuance of the warrant. The
list of purchasers from Seaman, and one informant's knowledge
of Seaman's address, also supported the application. Thus,
facts in the application demonstrated the informants1
reliability and basis of knowledge for reporting the
existence of criminal activity by Seaman.
C. Identities - - Informants:
of the Seaman argues that
the trial court erred in failing to order the State to
disclose the identities of the informants. support this
argument, Seaman cites State v. Chapman (19841, 209 Mont. 57,
679 P.2d 1210. In Chapman, this Court refused to allow the
State to claim the privilege of withholding an informant's
location and identity because the informant played a
continuous and primary role in the crime, and fundamental
fairness required disclosure because the informant's
testimony was relevant to his entrapment defense. Chapman,
679 P.2d at 1215. Similarly, in State v. Offerdahl (1971),
156 Mont. 432, 481 P.2d 338, this Court agreed with the trial
court that the informant must be disclosed because the
informant's testimony would determine the defendant's guilt
or innocence. Offerdahl, 481 P.2d at 342.
Seaman makes a different argument. He contends that
disclosure of the identities was necessary for determining
probable cause. The lower court failed to recognize the
distinction between "citizen informants" and informants who
themselves are involved in illegal activity, according to
Seaman. At the suppression hearing Undersheriff Lee
testified that the informants had previously been involved in
illegal drug activities.
Rule 502, M.R.Evid., provides the State a privilege to
refuse to disclose an informant's identity. The privilege
provides confidentiality to encourage reports of criminal
activity. Commission Comments, Rule 502, M.R.Evid. Where
the defendant claims disclosure is necessary for presenting
an effective defense, trial courts must engage in the
balancing test from Roviaro v. United States (1957), 353 U.S.
53, 77 S.Ct. 623, 1 L.Ed.2d 639. The test provides no fixed
rule, and in each particular case trial courts must weigh the
defendant's needs against the public's interest in the flow
of information from informants. Roviaro, 353 U.S. at 62.
Trial courts should take into consideration the crime
charged, the possible defenses, the possible significance of
the informant's testimony, and other relevant factors in
balancing the conflicting interests. Commission Comments,
Rule 502, M.R.Evid.
We have already held here that the reliability and basis
of knowledge of the informants was established. within the
application. If the law required disclosure of identities
and locations of informants to further test
the truth of the officer's statement that there is
an informant or as to what the informant related or
as the informant's reliability, we can be sure that
every defendant will demand disclosure. . . .The
result would be that the State could use t h ~
informant's information onlv as a lead and could
search only if it could gather adequate evidence of
probable cause apart from the informant's data.
Perhaps that approach would sharpen investigatorial
techniques, but we doubt that there would be enough
talent and time to cope with crime upon that basis.
Rather we accept the premise that the informer is a
vital part of society's defensive arsenal.
McCray v. Illinois, 386 U.S. 300, 306-07, 87 S.Ct. 1056,
1060, 18 L.Ed.2d 62, 68 (quoting State v. Burnett ( N . J .
1964), 201 A.2d 39). The Court in McCray also cited Burnett
for the proposition that it should rest entirely with the
judge who hears the motion to suppress to decide whether he
needs such disclosure as to the informant in order to decide
whether the officer is a believable witness. McCray, 386
U.S. at 308. This Court adopted the reasoning from McCray
in State v. Sykes (Mont. 1983), 663 P.2d 691, 40 St.Rep. 690.
Seaman's only argument goes to discrediting Undersheriff
Lee's assertion that the informants existed and that they
provided reliable information. Under these circumstances, we
hold that the District Court acted within its discretion in
refusing to order disclosure.
We also reject Seaman's staleness argument. Information
provided by the application stated that Seaman's current
peddling of heroin for $40.00 a "bag" was consistent with
illegal drug activities in Butte over the past ten years.
The application sufficiently set forth probable cause without
the assertion that the current activity resembled familiar
patterns of the drug trade in Butte. The added information
only supplemented the reliability of the current report.
11.
Seaman argues that the death of Mr. Nygard during the
search proves the search was overly intrusive. There is very
little evidence that police misbehavior precipitated Mr.
Nygard ' s death. Mrs. Seaman testified that she heard a
struggle in the room where Mr. Nygard was seated prior to his
collapse. Undersheriff Lee testified he stood in front of
Mr. Nygard at the time he collapsed. Lee also stated he
thought Mr. Nygard fainted, and that police immediately
initiated medical procedures for reviving Mr. Nygard. Thus,
this claim is unsupported and provides no basis for excluding
evidence.
111.
Seaman contends that the lower court erred in refusing
to grant his motion for a mistrial. The alleged grounds for
the motion sprung from the testimony of Detective Walsh on
finding the syringe containing heroin in a basket in the
bathroom. Walsh testified as follows:
Q Did you at any time search the wicker
basket?
A The following day, yes I did.
Q Did you find anything at that time in the
wicker basket?
A Again, like I stated, we found the
svringes. There were two syringes that were full
of this brown liquid. Again, there was other drug
paraphernalia there, hut that's what we observed.
There was also another item of drug evidence,
tincture of opium.
MS. CAUGHLAN [defendant' s counselI : Your
honor, we are going to interpose an objection here.
THE COURT: Sustained. Are you moving to
strike the answer?
MS. CAUGHLAN: I move to strike the answer.
THE COURT: The answer is stricken. I
instruct the jury to disregard his answer.
Seaman's counsel in moving for a mistrial contended that the
mention of opium violated the trial court's order prohibiting
introduction of other bad acts or crimes, and prejudiced
Seaman's right to a fair trial. The lower court denied the
motion holding it was sufficient to sustain the objection,
strike the testimony from the record, and order the jury to
disregard the evidence.
Trial courts properly grant mistrials when, taking all
circumstances into consideration, there exists a manifest
necessity to do so. State v. Scheffelman (Mont. 1987), 733
P.2d 348, 44 St.Rep. 357. This Court's review of a trial
court's denial of a motion for a mistrial is limited to
deciding whether the lower court abused its discretion in
refusing the motion. Scheffelman, 733 P.2d at 350. The
trial court occupies the best position to gauge the reaction
of jurors to inadmissible evidence for determining necessity
to order a mistrial. State v. Smith (Mont. 1986), 715 ~ . 2 d
1301, 43 St.Rep. 449. Mistrials may be properly granted for
introduction of inadmissible evidence resulting in harmful
error likely to affect the justice of the verdict. State v.
Lave (1977), 174 Mont. 401, 571 P.2d 97. Only where there is
a reasonable possibility that inadmissible evidence
contributed to the conviction is there reversible error in
denying the motion. State v. Brush (Mont. 1987), 741 P.2d
1333, 44 St.Rep. 1495. Where the party opposing admission of
evidence objects to offered evidence, and the trial court
sustains the objection, strikes the evidence from the record,
and instructs the jury to disregard the evidence, "error
committed by its introduction is presumed cured." Brush, 741
The presumption here favors finding no prejudice because
the lower court admonished the jury to disregard the
statement after sustaining Seaman's objection to the
testimony. Moreover, Walsh properly testified that he found
substances testing out as heroin and drug paraphernalia in
the basket. Testimony on the presence of tincture of opium
with these items is not so prejudicial as to warrant a new
trial. Thus, no error exists under this issue.
IV.
Seaman contends that the fact that the jury took so
little time in reaching a verdict demonstrates they failed to
consider or read the instructions, consider the evidence, or
follow their charge. Seaman asserts less than 25 minutes
elapsed from the time the trial court submitted the case to
the jury and the time the jury brought in its verdict. No
authority is provided by Seaman to support reversal for this
contention.
Rule 606(b), M.R.Evid., allows inquiry into the validity
of verdicts. Section 25-11-102, MCA, provides for
investigation of jury misconduct to reveal grounds for a new
trial. Seaman has invoked neither the statute nor the rule
in his claim on the jury's verdict.
The lower court, in passing sentence on Seaman, stated
that the evidence for finding the defendant guilty was "way
beyond a reasonable doubt." In reviewing the record, we
agree with the lower court. Overwhelming, substantial
evidence supports the verdict, and there appears no error of
law in the record. Thus, we reject the argument that the
jury spent too little time considering the law and facts in
this case, and we affirm on all issues.
@ ~A
GSJustice
. & 1
,,
,C
We Concur: /'