No. 90-123
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
plaintiff and Respondent,
-vs-
JOHN DESKINS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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Howard Toole, t is sou la, Montana
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(33 :71,1 For Respondent:
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Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Assistant Attorney General,
Helena, Montana
Robert Deschamps, 111, County Attorney, Missoula,
Montana
submitted on ~riefs: July 13, 1990
Decided: October 24, 1990
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Defendant and appellant, John Deskins, was charged in the
District Court of the Fourth Judicial District, Missoula County,
on June 23, 1989, with the offense of criminal possession of
dangerous drugs with intent to sell. He appeals the denial of his
motion to suppress the results of a search by Missoula City Police
pursuant to a May 25, 1989 search warrant issued by District Court
Judge Jack L. Green. We affirm.
The only issue before this Court is whether the District Court
erred in failing to grant the appellant's motion to suppress.
On May 23, 1989, Missoula City Police Officer Vincent
Sparacino received a Crimestoppers' report from an anonymous
caller. The caller stated that he had been taken into the basement
of a greenhouse located at 600 or 602 South Avenue East in
Missoula, and had been shown a marijuana growing operation.
Officer Sparacino arranged to have the caller contact the Narcotics
Unit the next day. The following day, May 24, 1989, Missoula
Police Detective Rocky Harris received a Crimestoppers' report
regarding the same marijuana growing operation. The caller
identified himself as the same caller who had talked to Officer
Sparacino the previous day.
As a result, Detective Harris contacted the county assessor's
office and verified that the owners of the property on South Avenue
East were John and Nancy Deskins. He also contacted the
treasurer's office to confirm the issuance of the resident licence
to Nancy Deskins for the operation of a day care facility on the
property and to check names of the registered owners of the
vehicles parked on the property. The vehicles on the property were
registered to Mr. and Mrs. Deskins. When Detective Harris checked
with the Montana Power Company to substantiate the registered names
for the utility service to the two addresses, the registration
revealed the name of John Deskins.
Based upon the knowledge that marijuana cultivation operations
often consume a significant amount of electricity, Detective Harris
obtained an investigative subpoena to gain access to the records
of the electrical consumption at the Deskins' property. These
records for the residential portion of the Deskins' property (600
South Avenue East) showed the power consumption for the residential
half of the duplex as follows:
Interval Kilowatt Hours Consumed
378 KWH
81 KWH
298 KWH
148 KWH
390 KWH
494 KWH
421 KWH
525 KWH
167 KWH
371 KWH
1567 KWH
Electrical consumption records for the other portion of the
property, the day care at 602 South Avenue East, revealed the
following:
Interval Kilowatt Hours Consumed
931 KWH
176 KWH
645 KWH
300 KWH
787 KWH
1364 KWH
1442 KWH
1035 KWH
276 KWH
612 KWH
901 KWH
Detective Harris, who has had extensive training in narcotics
investigations and knowledge pertaining to electrical power
consumption for average household usage and for a typical marijuana
cultivation operation, testified that from his training and
experience the Deskinst electrical consumption records reflected
a cyclical use of power that was not explained seasonally.
Detective Harris concluded that the Deskins' electrical consumption
records were consistent with the Crimestoppers caller's observation
of the marijuana cultivation operation, and as a result he prepared
an application for a search warrant of the property.
On May 25, 1989, pursuant to a search warrant issued by
District Court Judge Jack L. Green, members of the Missoula Police
Department conducted a search of the duplex located at 600 and 602
South Avenue East owned by the appellant and his wife. The search
revealed a large quantity of marijuana, 250 marijuana plants, and
equipment used in the cultivation of marijuana, namely sodium grow
lamps, fans, and scales.
In addition to the marijuana plants and equipment, the
following firearms were also taken pursuant to the May 25, 1989,
search: a loaded Fox .12 gauge shotgun; an H & K SL .223 rifle with
a loaded magazine; a Western Field single shot .22; a Ruger Mini
14 with a loaded magazine; a Wards Western Shotgun, loaded; a Chief
Special revolver .38 caliber, loaded; and a Game Getter antique
pistol, loaded.
On June 23, 1989, the appellant was charged in Missoula County
District Court with the offense of criminal possession of dangerous
drugs with intent to sell. On August 23, 1989, the appellant filed
a motion to suppress the results of the May 25, 1989, search,
alleging insufficient probable cause forthe issuance of the search
warrant.
The suppression hearing was held August 24, 1989. At the
suppression hearing, Officer Sparacino's record of the
Crimestoppersl call of May 23, 1989, was admitted into evidence.
In addition, Detective ~ a r r i stestified at the hearing regarding
the substance of his conversation with the Crimestoppers caller.
The person called stating he had seen a marijuana growing operation
in the residence of Morgan Deskins. The person said that there
were two other individuals living there, the father and the mother,
John and Nancy Deskins, and that this residence also housed a day
care. Furthermore, the person was personally shown this operation.
~etectiveHarris also testified the caller stated that the
marijuana was grown in two-and-one-half or three-month cycles and
that the caller had seen growing marijuana plants in the Deskins1
residence a month previously. The caller also told Harris that
"there were fluorescent sodium lamps hanging over the plants.I1
It should be noted that the search warrant application
indicated that the electrical consumption records obtained by
Harris were presented to the reviewing judge in conjunction with
the actual application. However, at the time of the hearing on the
motion to suppress, no such records were present with the search
warrant application in the District Courtls file. While the
appellant alleges that the reviewing judge had only the llconclusive
allegation^^^ of the applicants with respect to the information
conveyed by the foregoing records, this is contradicted by the fact
that the application contained a synopsis of the electrical
records.
Following the denial of the motion to suppress the evidence
seized, the appellant entered a plea of guilty to the offense, and
the matter is now presented to us on the question of the validity
of the search.
The appellant in his argument notes that under the provisions
of 5 46-13-302(4), MCA, the burden of proving the illegality of a
search and seizure is upon a defendant. State v. Baldwin (Mont.
1990), 789 P.2d 1215, 1220, 47 St.Rep. 614, 620. In Baldwin, this
Court held that there is a presumption that a magistrate properly
issued the search warrant after subjecting the application to 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.
We have previously held in State v. District Court of the
Eighth Judicial District (1978), 176 Mont. 257, 264, 577 P.2d 843,
859 and State v. Lane (1977), 175 Mont. 225, 236, 573 P.2d 198,
202, that a judicial decision granting a search warrant is presumed
correct on appeal.
In addition, in State v. Hembd (1989), 235 Mont. 361, 767 P.2d
864, this Court held that It[t]he reviewing court's examination is
limited to whether the magistrate had a substantial basis for
concluding probable cause existed.!! Hembd, 235 Mont. at 366, 767
P.2d at 868. We have noted that the determination of probable
cause is entitled to "great deferencell from a reviewing court.
Sundberq, 235 Mont. at 123, 765 P.2d at 741.
The probable cause requirement sufficiently establishes a
probability rather than a prima facie case "that incriminating
items, namely items reasonably believed to be connected with
criminal behavior, are located on the property to which entry is
sought." Sundberq, 235 Mont. at 119, 765 P.2d at 739. "That
probability will be determined using a totality of the
circumstances analysis, based upon the circumstances set forth in
the affidavit." Hembd, 235 at 366, 767 P.2d at 867 (citation
omitted). Following Illinois v. Gates, this Court has held
that information in the form of an anonymous tip from an informant
whose reliability is established by independent corroboration may
serve to establish probable cause.
We note in passing, however, that the use
of anonymous tips as an element in obtaining
a search warrant has been sustained by the
United States Supreme Court in Illinois v.
Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527, and by the Montana Supreme Court
in State v. Kelly (1983), 668 P.2d 1032, 40
St.Rep. 1400, where other corroborating
evidence is shown.
State v. Cain (1986), 220 Mont. 509, 515, 717 P.2d 15, 19.
In the present case, the search warrant application recites
the informant's statement that he had been in the appellant's
basement one month previously at the invitation of the appellant's
son and personally observed growing marijuana plants. Personal
observation of criminal activity by an informant whose reliability
can be established provides probable cause. State v. Walston
(1989), 236 Mont. 218, 222-23, 768 P.2d 1387, 1390.
We find that, clearly, there was a substantial basis for the
District Court's conclusion that probable cause was I1readily
ascertainable."
The appellant attempts to undermine the showing of probable
cause by citing a number of so-called inconsistencies in the
evidence. First, the appellant alleges that the State has a burden
to inform the reviewing magistrate of any criminal history on the
part of the suspect when applying for a search warrant, and because
he had no criminal history, the State fell short of its burden when
applying for the search warrant. However, appellant cites no
authority for the proposition.
Secondly, appellant cites an alleged inconsistency in the
informant's tip. The search warrant application stated the
informant had been on the Deskins' property thirty days before he
contacted the law enforcement authorities. The testimony of
Officer Sparacino indicated the informant had been on the premises
' a couple of days earlier."
' The appellant now points to this
discrepancy as error. The State explains the inconsistency as
merely a lack of recollection. Because Officer Sparacino did not,
at the time of the informant's call, document the date and time
when the informant claimed to have been on the Deskins1 property,
Officer Sparacino had no record of that date to refer to when
testifying three months later. We find this alleged inconsistency
without merit.
We find, after carefully considering the case authority in
this matter, that the arguments of the appellant are without merit
and the judgment of the District Court is affirmed.
Justices
Justice R. C. McDonough respectfully dissents.
The search of the Deskinst home does not comply with the
policies which are articulated in the Fourth Amendment to the
United States Constitution and the right to be free from
unreasonable searches (Article 11, Section ll), and the right of
privacy (Article 11, Section 10) embodied in the Constitution of
the State of Montana. For this reason, I would reverse.
The policies embodied in the above Amendment and articles
grew directly out of events which immediately preceded the
revolutionary struggle with England. Due to their experience with
unrestrained search and seizure by means of automatic issuance of
writs of assistance, the colonists viewed the prohibition of
unreasonable searches and seizures of utmost importance. As a
result, after the signing of the Declaration of Independence, at
least eight states included such prohibitions in their
constitutions. Perry and Cooper Sources of Our Liberties (1959).
Eventually the federal government followed this lead through its
enactment and the states' ratification of the Bill of Rights.
These freedoms should not be lost by the exigencies of our
times. The right to be free from unreasonable search and seizure
is of paramount importance to a free society. Following his return
from the Nuremberg trials Justice Jackson observed:
[Fourth Amendment rights] are not mere second class
rights but belong in the catalog of indispensable
freedoms. Among deprivations of rights, none is so
effective in cowing a population, crushing the spirit of
the individual and putting terror in every heart.
Uncontrolled search and seizure is one of the first and
most effective weapons in the arsenal of every arbitrary
government ...
See Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37
L.Ed.2d 596, 93 S.Ct. 2535 citing Brinegar v. United States (1948),
338 U.S. 160, 180, 93 L.Ed. 1879, 1893, 69 S.Ct. 1302, 1313
(Jackson dissenting).
Consistent with these sentiments, the framers of our State
Constitution have prohibited state officials from conducting
unreasonable searches and seizures of property. This prohibition
is contained in Article 11, Section 11 of the Montana Constitution.
It states:
The people shall be secure in their persons, papers,
homes and effects from unreasonable searches and
seizures. 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.
As this article indicates, government officials must apply to
the courts for permission to search a person's property. Before
this permission can be granted, the judiciary must determine
whether there is probable cause to believe that evidence of illegal
activity will be found in the place to be searched. Courts have
spent a great deal of time attempting to formulate a test which can
be utilized in probable cause determinations. The United States
Supreme Court, in Illinois v. Gates (1983), 462 U.S. 213, 76
L.Ed.2d 527, 103 S.Ct. 2317, has adopted a totality-of-the-
circumstances test.
According to this test, a reviewing magistrate need only make
a common sense decision whether, given all the circumstances set
forth in the affidavit, there is a fair probability that evidence
of a crime will be found in a particular place. Therefore, if from
a review of the totality of the circumstances it reasonably appears
that criminal evidence is present at the locale to be searched, a
search warrant could legally be issued. Gates, 462 U.S. at 238.
~ollowingthe Gates decision, this Court followed federal lead and
adopted the same totality of the circumstances approach. State v.
Kelly (1983), 205 Mont. 417, 668 P.2d 1032.
Many commentators, fellow judges and legal scholars have
expressed strong disagreement with the principles set forth in
Gates. Justice Byron White for example, while concurring in the
outcome of the Gates case, disagreed with the majority's decision
to adopt the totality of the circumstances test. He expressed
concern that utilization of the totality of the circumstances test
would result in "an evisceration of the probable cause standard."
Gates, 462 U.S. at 272 (White concurring).
The case now before us proves Justice White to be correct.
Gates is a step backward in the development of any set of coherent
rules to deal with information supplied by an informant. As stated
in Gates, "The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including
'veracity1 and 'basis of knowledge1 of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.I1 Gates,
462 U.S. at 238.
*
The Gates decision, however, fails to adequately define or
limit the term "practical, common-sense decision.I1 Utilization of
this broad standard has rendered probable cause determinations
involving hearsay information, essentially subjective. Through
their use of this 9gcommon-sensen
approach, the courts have turned
probable cause determinations into an art form which is not based
on any reason or rule of law. For this same reason appellate
review of search warrant decisions is difficult, because there are
no real standards of review, except the appellate judge's view of
"practical common sense. Due to the use of such a subjective
test, inconsistencies between magistrates and reviewing trial
courts are sure to arise and the application of common law will be
thwarted.
Previous to the Gates decision, the courts used the two-prong
Aguilar-Spinelli test when making probable cause determinations.
See Aguilar v. Texas (1964) 12 L.Ed.2d 723, 378 U.S. 108, 12
L.Ed.2d 723, 84 S.Ct. 1509; Spinelli v. United States (1969), 393
U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584. As the previous paragraphs
indicate, probable cause is an innocuous concept which involves
legal intricacies as well as everyday common sense. In recognition
of this concept, the courts have sought to develop a set of
coherent rules governing a magistratels consideration of warrant
applications and the showings that are necessary to support a
finding of probable cause. Gates, 462 U.S. at 275 (Brennan
dissenting). In my view this goal is well served by renewed
adherance to the two-pronged Aguilar-Spinelli test.
This test requires the police, when relying upon hearsay
information provided by an informant, to establish two elements
before obtaining a search warrant. First, the police must
establish some basis to reasonably believe crime evidence will be
found at the locale to be searched. Second, the police must
provide facts which establish either the veracity of their
informant or alternatively the reliability of the informant's
report. Asuilar, 378 U.S. at 114, S~inelli,393 U.S. at 413. Each
element must be established; they are independent and separate
requirements. If one is not established, probable cause would not
exist on the basis of information received from an informant. Very
strong evidence relative to one test does not overcome the
deficiencies involved in the other test.
It is important to realize, however, that the two prongs of
~guilar-Spinellineed only be met when the police are relying upon
evidence obtained through an informant. Therefore, when they rely
upon facts which are directly discovered through investigation, the
police need not present further information which establishes
credibility or veracity. In these situations, the police need only
establish the first prong of Aguilar-Spinelli which requires that
they present facts which support the reasonable conclusion that
incriminating evidence will be found in the place to be searched.
Holley, The Decline of the Right to Privacy and Security; Gates and
the States - The First Three Years (1988) 21 Creighton L.Rev. 823.
When the police rely upon hearsay information however, they
must also satisfy the second prong of Aguilar-Spinelli. This
requirement is necessitated by the recognition that hearsay
information obtained from an informant is often times
untrustworthy. See State v. Gommenginger (1990), 47 St.Rep. 681,
790 P.2d 455 citing Fletcher v. United States (D.C. Cir. 1946),
158 F.2d 321. In order to ensure that search warrants are not
obtained through reliance upon false information or unfounded
rumors, the Aguilar-Spinelli rule requires the police to establish
the credibility of their informant or the veracity of his
information. ~pinelli,393 U.S. at 416.
This requirement serves a second purpose when applied to
anonymous tips. By definition nothing is known about an anonymous
informant's identity, honesty or reliability. The courts should
not, therefore, blindly accept conclusory allegations from such
sources or attach any presumption to their information. Gates, 462
U.S. at 284 (Brennan dissenting). Such allegations, submitted by
police officers, who are considered presumptively reliable, cannot
form the basis for probable cause. Therefore, the courts should
not accept the same type of conclusion from anonymous informants
when nothing is known concerning their reliability.
The first prong of the test, can often be satisfied if the
informant's tip contains sufficient detail describing the accused's
criminal activity. Such detail might assure the magistrate 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 416. See
also Draper v. United States (1959), 358 U.S. 307, 31 L.Ed.2d 327,
79 S.Ct. 329. Of course, this portion of the test can also be
satisfied through a clear explanation of how the informant came
across his knowledge concerning the alleged criminal behavior.
Stanley v. State (Md. 1974), 313 A.2d 847, 861.
The second prong of the Aguilar-Spinelli rule can be satisfied
through statements by an officer informing the magistrate of the
informant's reliability. Often this is accomplished by showing
that the information obtained from the informant was against his
penal interests or that the informant has been proven reliable in
the past. LaFaue, Search and Seizure (1978) Volume 1 § .
3.3 (c)
The second prong can also be met by establishing the veracity of
the informant's allegations. This can be accomplished through
corroboration of details of the tip by further investigation. See
Gates, 462 U.S. at 283 (Brennan dissenting). Such corroboration
can help establish the reliability of the source. If law
enforcement can establish that an informant is right about some
things, it is generally safe to conclude that "he is right about
other facts, usually critical, unverified facts." See Spinelli,
393 U.S. at 427 (White concurring).
Through application of this test to the case now before us,
it is apparent that sufficient probable cause does not exist and
the search of the Deskins' home was unreasonable. The
investigating officer in this case had three basic facts which were
incorporated in his affidavit for a search warrant. According to
the majority opinion, the officer received an anonymous tip from
an informant who stated he had seen a marijuana growing operation
. s
in the basement of a house located at 600 or 602 South Avenue East.
The informant further stated that the house was owned by John and
Nancy Deskins. The police officer verified the fact that the house
was owned by the Deskins. The officer also, through a review of
electrical records, concluded that the Deskins were engaged in a
marijuana growing operation. This conclusion was based upon the
fact that the Deskins' use of electricity fluctuated.
To begin the analysis we must address the first prong of the
test, which requires an inquiry into the facts and circumstances
that combine to form a basis for the anonymous informant's belief
that the Deskins' basement contained a marijuana growing operation.
In making this inquiry, we must restrict our analysis to the four
corners of the search warrant. State v. Hembd (1989), 235 Mont.
361, 767 P.2d 864.
According to the search warrant affidavit, the anonymous
tipster told officials of the Missoula police department that he
personally viewed a marijuana growing operation in the Deskins'
home. According to the tip, the operation was located in the
basement which was equipped with florescent lights. The plants
were grown on a two and one-half month cycle.
The first prong of the Aguilar-Spinelli test can be satisfied
by a statement from the informant that he personally observed the
criminal activity. See S~inelli,393 U.S. at 416. Such personal
observation occurred in this case and therefore the first prong of
the test is satisfied.
The information contained in the affidavit fails to meet the
requirements of the second prong, however. This portion of the
test requires that the police show either that the informant is
credible or that his information is reliable. This case involves
an anonymous tip. Therefore, the police obviously cannot establish
the informant's credibility. Instead they must establish the
veracity of his information.
The Missoula police officers sought to accomplish this task
by verifying that the Deskins lived where the informant said they
did and by obtaining electrical records. The fact that the Deskins
lived at 600 South Avenue East is an innocent fact. It does
nothing to establish any allegation regarding illegal activity.
Moreover, the electrical records in and of themselves do not
establish the probability that the Deskins illegally grew
marijuana .
Supported by further evidence, electric records are invaluable
in detecting illegal activity. However, by themselves they do not
provide adequate information to establish probable cause. See e.s.
State v. Huft (Wash. 1986), 720 P.2d 838, State v. Mason (Idaho
1986), 728 P.2d 1325. This fact is especially evident in the case
now before us. The informant told Missoula police officers that
the Deskins had been growing marijuana for five years. Despite
this allegation the police officers only included power records for
the period between September of 1988 until May of 1989 in their
application for a warrant. During this nine month period, records
indicate that in the residential portion of their home, the
Deskins' power usage approximated 378 KWH during the months of late
September through late November of 1988. Their usage rose to 538
KWH during the time period between November 22 through December 21,
1988. During the months of late December through late March, the
power records reveal that the Deskins' usage ranged from a low of
421 KWH, to a high of 525 KWH. This use rose dramatically between
April 20, 1989 and May 22, 1989, to a rate of 1567 KWH.
Examination of records from the day care portion of the
Deskins' property revealed similar information. During the fall
months, the Deskins utilized an average of 876 KWH of electricity
per month. This power usage increased steadily throughout the
winter months to a high of 1442 KWH during January and February of
1989. During the spring months, the electricity records reveal
that the power usage once again approximated 900 KWH, which was
close to that recorded during September and October of the previous
year.
With the possible exception of the high rate recorded in
April and May of 1989 for the residential portion of the property,
these records are not indicative of any illegal activity. On the
contrary, the records indicate a normal utilization of electrical
power. For both the home and the day care center, the power usage
increased throughout the fall and winter months and then began to
decline during the spring.
The Missoula police stated in their affidavit that the high
rate recorded in April and May indicated the beginning of a
marijuana growth cycle. However, this high rate was recorded over
only one month. According to the informant, the Deskins had grown
marijuana for five years. This one month period does not establish
any pattern which may have been revealed through a review of power
records gathered from a longer period of time. Furthermore, it is
highly doubtful that increased use of electricity during one month
can form the basis to verify an anonymous tip such as received
here.
The affidavit for the search warrant failed to establish
probable cause, as determined under the Aguilar-Spinelli test,
because the police did not sufficiently verify the information
obtained through the anonymous tip. Moreover, the results of this
case illustrate the problems inherent in the totality of the
circumstances test. Armed with only an anonymous tip and a high
rate of electricity recorded over only a one month period, the
police obtained a warrant and searched a citizen's home. The
authors of our state constitution sought to prevent such
occurrences through inclusions in our state constitution granting
Montana citizens a right to privacy and a right to be free from
unreasonable searches and seizures.
Although we are constrained by the minimal protections
afforded by the federal constitution, we may construe the rights
enumerated in our state constitution as affording additional
liberties to thosegranted by the United States Supreme Court. The
State of Alaska rejected completely the totality of the
circumstances test on the basis that its constitutional provisions
granting a right against unreasonable searches and seizures and a
right to privacy, mandated stronger protection. State v. Jones
(Alaska 1985), 706 P.2d 317. The detailed reasoning set forth by
the Alaska Supreme Court is compelling. I believe it should be
adopted by this Court, given the fact that the Montana Constitution
contains provisions similar to those of the Alaska Constitution.
The judgment should be vacated and the results of the search
suppressed.
Justices William E. Hunt, Sr. and John C. Sheehy concur in the
foregoing dissent.
/1
Justices '