No. 90-503
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Julie A. Macek, Attorney at Law,
Great Falls, Montana
For Respondent:
Honorable Marc Racicot, Attorney General,
Elizabeth L. Griffing, Assistant Attorney General,
Helena, Montana; Patrick L. Paul, Cascade County
Attorney, Kim Schulke, Deputy Cascade County
Attorney, Great Falls, Montana
Submitted on Briefs: May 30, 1991
Decided: August 20, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Gerald Hall appeals the judgment of the District Court of the
Eighth Judicial District for Cascade County, finding the defendant
guilty of criminal possession of dangerous drugs with intent to
sell. We affirm the District Court.
The issues on appeal are:
1. Whether the defendant's probation officer had reasonable
cause to conduct a warrantless search of defendant's home.
2. Whether the defendant's constitutional rights were
violated by his inability to question a police informant at his
trial.
3. Whether there was sufficient evidence to support
defendant's conviction.
Gerald Hall was placed on parole on February 20, 1986,
following convictions of felony theft and criminal mischief. As
a condition of his parole, Hall agreed to submit to searches by his
parole officer of his person, automobile, or premises at any time
with or without a warrant upon reasonable cause. He was also
prohibited from possessing drugs and agreed to submit to drug
testing at the request of his parole officer.
In January 1990, the Great Falls Police Department was advised
by an informant, William Smith, that drugs could be purchased from
Wayne Davis.
On January 9, 1990, Detective Brian Lockerby of the Great
Falls Police Department purchased one-quarter pound of marijuana
from Davis and observed Davis obtain the marijuana from Hall's
residence in Great Falls. The detective was informed that the
seller, a man named charlie, lived in the house with another man
named Gerald.
At a briefing the next day, Lockerby discovered that a parolee
named Gerald Hall lived at the residence. Lockerby contacted
Hall's parole officer, Michael Redpath, and informed him of the
situation. No search was conducted at that time because Lockerby
wished to conduct further investigation concerning the possible
sale of explosives and automatic weapons from the residence. A
second attempt at purchasing drugs was unsuccessful, and a third
was planned when Lockerby learned that the man identified as
Charlie was in jail.
Lockerby informed Redpath that the investigation had ended.
Redpath decided that a search of Hall's residence was in order.
On January 23, 1990, Redpath and two detectives from the Great
Falls Police Department went to the residence, advised Hall that
they intended to search the house, and read him his rights. The
officers found drug paraphernalia throughout the house, some of
which was similar to items commonly used in drug transactions.
In the closet of Hall's bedroom, the officers found a duffle
bag containing four I1baggiesfifi
of marijuana and various containers
commonly used to transport and sell marijuana. At the conclusion
of the search, Hall was shown the duffle bag containing the
marijuana and he stated to the officers that the bag and the
marijuana inside were his. Hall later claimed that he made the
statement to protect his wife from being charged, and that the bag
and its contents actually belonged to Charlie Devito, his
incarcerated houseguest.
Hall was arrested and charged with criminal possession of
dangerous drugs with intent to sell. He pled not guilty and filed
a motion to suppress the evidence found and statements made at his
residence on the grounds that his parole officer lacked reasonable
grounds to search his home. A hearing was held, and Hall's motion
was denied.
A jury trial commenced on June 5, 1990. The jury returned a
verdict of guilty, and Hall was subsequently sentenced to serve
ten years, with an additional consecutive five years added because
of his designation as a persistent felony offender. Hall appeals
from this judgment .
Hall maintains that his probation officer, Michael Redpath,
did not have reasonable cause to conduct a search of his home
without a warrant and that all evidence obtained should have been
suppressed.
In State v. Burke (1988), 235 Mont. 165, 766 P.2d 254, this
Court, following Griffin v. Wisconsin (1987), 483 U.S. 868, 107
S.Ct. 3164, 97 L.Ed.2d 709 (1987) set forth the standard for
probationary searches. In adopting Griffin's reasonable grounds
standard, which is less stringent than the Fourth Amendment
probable cause standard, this Court stated:
~estrictionson a probationer are meant to assure that
the probation serves as a period of genuine
rehabilitation and that the community is not harmed by
the probationer's conditional liberty status.
In conjunction with the need for supervision, a degree
of flexibility must also be accorded the probation
officer. The probation officer acts upon a continued
experience with the probationer, with knowledge of the
original offense, and with the probationer's welfare in
mind. Because of his expertise, we view the probation
officer in a far superior position to determine the
degree of supervision necessary in each case.
s his expertise would be rendered meaningless if a warrant
requirement were imposed prior to a probationary search.
The independent magistrate, rather than the probation
officer, would ultimately make supervisory decisions.
In addition, the delay associated with obtaining a
warrant plus the greater evidentiary burden would, we
believe, substantially inhibit the effectiveness of the
probation system.
Burke, 235 Mont. at 169.
In this case, Hall Is probation officer knew that Hall had tested
positive for marijuana several times during his probation. In March
1989, Hall was arrested for violating the terms of his parole when
his urinalysis detected marijuana use. Rather than revoke Hall's
probation, an intervention program was instituted. Less than ten
months later, Hall's probation officer was informed that drug sales
were being conducted out of Hall's residence. In light of that
information, we conclude that Hall's probation officer had reasonable
grounds to conduct a warrantless search of the premises. We conclude
that the District Court did not abuse its discretion in denying the
motion to suppress evidence gathered during the search.
I
I.
Hall contends that he was denied the right to confront and cross
examine ~illiam
Smith, the unavailable informant whose statements led
to the investigation of Wayne Davis, and that any reference during
trial to out-of-court statements made by Smith violated his right to
confront witnesses and was prejudicial.
Smith's statements did not form any basis for Hall's conviction.
They were merely foundational to explain why Lockerby happened to be
where he was when he observed the drug transaction at Hall's
residence.
Furthermore, the reliability of the informant is not an issue
in this case. Smith's statements were not the basis for the search
of Hall's residence. His statements implicated Charles Devito, not
Hall. Pursuant to the information, Detective Lockerby conducted an
undercover buy of narcotics. Lockerby personally witnessed the sale
of drugs from Hall Is residence. It was that observation, and Hall's
past drug use while on parole, that were the basis for the search of
Hall's home. Therefore, the veracity of Smith's statements was never
at issue, and Hall has failed to demonstrate the denial or invasion
of a substantial right from which the law imputes prejudice. State
v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 1275, 1281.
111.
Hall contends that there was insufficient evidence to find that
the State had proven the essential elements of the crime charged
beyond a reasonable doubt. Specifically, Hall maintains that the
State did not establish his possession of the drugs nor his intent
to sell drugs.
Hall maintains that the State failed to prove that he had
constructive possession of the marijuana. Hall contends that the
marijuana was found in a duffle bag belonging to Charles Devito, and
that the State neither proved that Hall maintained dominion and
control over the drugs nor knew of their existence.
Section 45-9-103(1), MCA, requires proof that a defendant
knowingly possessed dangerous drugs with an intent to sell.
ll~ossessionll defined as Itthe knowing control of anything for a
is
sufficient time to be able to terminate control.11 Section
45-2-101(52), MCA. Knowledge, therefore, is an element of
possession. Although knowledge cannot be inferred from mere
possession alone, knowledge may be proven by evidence of acts,
declarations, or conduct of the accused from which an inference may
be drawn. State v. Krum (1989), 238 Mont. 359, 777 P.2d 889, 891.
Hall stated after the search of his home that the marijuana in
the duffle bag was his. The bag was found in Hall Is bedroom closet.
Where a controlled substance is found in a place subject to the joint
dominion and control of two persons, possession may be imputed to
either or both persons. State v. Scheffelman (1987), 225 Mont. 408,
733 P.2d 348, 352. Given the evidence, the trier of fact made a
factual determination that Hall maintained constructive possession
of the marijuana. State v. Smith (1983), 203 Mont. 346, 661 P.2d
463, 466. We conclude that there is sufficient evidence to support
the jury's finding of possession.
Hall contends that there was insufficient evidence to find
intent to sell. This Court has noted the difficulty of proving
criminal intent on numerous occasions. Because it is seldom subject
to direct proof, intent must be inferred from the acts of the accused
and the facts and circumstances of the offense. State v. Crumley
(1986), 223 Mont. 224, 725 P.2d 214. In this case, Hall's household
contained numerous articles commonly used in drug transactions,
including scales, containers, and other packaging materials.
Furthermore, the drugs were individually packaged in a manner to
indicate readiness for piecemeal distribution. The presence of the
drugs in combination with other items consistent with sales
activities and inconsistent with personal use may be used to infer
an intent to sell. State v. Garberding (Mont. 1990), 801 P.2d 583,
587, 47 St.Rep 2157. We conclude that there was sufficient evidence
to support the jury's verdict. Hall's conviction and the sentence
imposed are, therefore, affirmed.
We concur: