NO. 90-399
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
APR 2 4 1991
-vs-
JAMES A. CROWDER, C L E R K OF S U P R E M E COUR"~
STATE OF MONTANA
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Dee Morris, Attorney at Law, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana
Barbara Harris, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: March 21, 1991
~ecided: April 24, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
A jury sitting in the District Court of the Fourth Judicial
District, Missoula County, convicted James A. Crowder of three
counts of felony possession of dangerous drugs, one count of
misdemeanor possession of a dangerous drug, and one count of
criminal possession of drug paraphernalia, a misdemeanor. We
affirm.
Crowder presents the following issues:
1. Did the District Court err in finding that the application
for the search warrant contained facts sufficient to establish
probable cause?
2. Did the District Court err in refusing to order disclosure
of the identities of the police informants?
3. Did the District Court err in failing to join Counts I and
I1 into a single count of possession of the dangerous drug
methamphetamine?
Summary of Facts
Police received information from four informants over a period
of a year alleging that James A. Crowder and his brother were
manufacturing and selling methamphetamine. Only two of the
informants were known to be reliable to police. The first
informant, whose identity was known to the officer, apprised
Detective Larry Jacobs in August1988 that Crowder was distributing
in Missoula County methamphetamine manufactured by Crowder's
brother in Idaho.
In October 1988 another informant, anonymous, but familiar by
sight and known to be reliable by other police officers, told
Detective Rocky Harris much the same information.
On June 2 , 1989, a third informant disclosed to Detective
Jacobs that the Crowder brothers had moved their methamphetamine
lab to Missoula County. The third informant stated that, although
he did not know the specific location of the lab, he had observed
the glassware the Crowders used, had seen the finished product, and
was in constant touch with the Crowders. Detective Jacobs knew the
third informant, but had not previously relied upon him for
information.
On August 14, 1989, a fourth informant, known to be reliable
by Detective Jacobs, revealed that Jim Crowder had a
methamphetamine lab and chemicals in the garage at his residence
on Evaro Hill. The informant had seen the finished product, but
not the lab. The fourth informant was involved in working on
another case with police.
On August 17, 1989, the third informant, whose reliability was
unknown, contacted Detective Jacobs for a second time. The
informant claimed that he had personally observed Crowder's
methamphetamine lab and chemicals in Crowder's garage near his
house. According to the third informant, Crowder was likely to
produce one to two pounds of methamphetamine within the next week.
The third informant also believed that Crowder had marijuana
growing on his property.
After the tip from the fourth informant, on August 14, 1989,
Detective Jacobs and Agent Long of the Montana Criminal
Investigation Bureau drove to Crowder's residence and observed it
from 8:00 to 11:OO p.m. The officers saw three men working on a
pickup in the garage. Detective Jacobs and Agent Long, walking
about 50 yards from the garage, thought that they detected an odor
similar to that of chemicals used in the methamphetamine
manufacturing process.
Based on the above information, a search warrant was issued,
and eighteen fully-armed state and federal police officers
approached the residence on August 18, 1989. When it became
apparent that no danger existed, all of the men left except six
officers who searched Crowder's residence for five hours.
Officers searched Crowder's person and found a brown vial
containing methamphetamine residue and a brass pipe. In the garage
officers discovered filter papers, one of which contained traces
of methamphetamine, a glass tube, and a razor blade. In Crowder's
home, officers seized a peyote plant, a plastic baggie containing
marijuana, another vial containing methamphetamine residue,
marijuana on a tray in the kitchen cupboard, and another pipe used
for smoking drugs.
One of the officers testified in a pre-trial hearing that
police also seized a gas mask, rubber gloves, cooking instructions,
and the recipe for methamphetamine, although these items were not
introduced as evidence at trial.
Police did not find the glassware or chemicals used to make
methamphetamine.
A jury found Crowder guilty of criminal possession of
methamphetamine on the defendant's premises, criminal possession
of methamphetamine on the person, and criminal possession of
mescaline, all felonies, as well as criminal possession of
marijuana and criminal possession of drug paraphernalia, both
&
misdemeanors.
Crowder received a five-year prison sentence for each of the
first two counts, to be served concurrently, a five-year sentence
for the third count, and six months in prison for each of the last
two counts. All of the sentences were suspended, except for the
concurrent five-year sentences for the first two counts. Crowder
was also fined $1,000 and required to pay court costs.
I
Did the District Court err in finding that the application
for the search warrant contained facts sufficient to establish
probable cause?
Crowder claims that the search warrant application was
insufficient to establish probable cause because the police
investigation was inadequate to corroborate the information
provided by informants. Additionally, Crowder asserts that the
application contained stale tips and was lacking in details about
Crowderfs drug involvement.
A search warrant must state Iffactssufficient to show probable
cause for issuance of the warrant.I1 Section 46-5-202(1)(b), MCA.
To determine whether a magistrate had probable cause to issue a
warrant, the reviewing court must look solely to the information
given to the impartial magistrate and to the four corners of the
search warrant application. State v. Sundberg (1988), 235 Mont.
115, 121, 765 P.2d 736, 740.
To address the issue of probable cause for issuance of a
warrant, this Court has adopted the I1totalityof the circumstance^^^
test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed.2d 527. State v. Jensen (1985), 217 Mont. 272, 704
P.2d 45. The duty of the reviewing court is to ensure that the
magistrate had a lllsubstantial
basis1I1to conclude that probable
cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76
L.Ed.2d at 548 (quoting Jones v. United States (1960), 362 U.S.
257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708). Ascertaining the
veracity and bases of informants1 knowledge are important aspects
of the I1totality of the circumstance^^^ test:
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 the llveracitylland "basis of knowledge" of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will
be found in a particular place.
Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The
United States Supreme Court emphasized the Ifvalueof corroboration
of details of an informant's tip by independent police work1'
establishing a substantial basis for crediting the hearsay. 'I1
Gates, 462 U.S. at 241-42, 103 S.Ct. at 2334, 76 L.Ed.2d at 550
(quoting Jones, 362 U.S. at 269, 80 S.Ct. at 735, 4 L.Ed.2d at
Arguably, the investigation by the police department could
have been more thorough. The location of the Crowder residence and
outbuildings as described by informants was confirmed. Officers
observed the Crowder residence for three hours. According to
testimony, the officers saw three men working in the garage on a
pickup truck. The other evidence gained by the officers was that
they detected "an odor similar to that of chemicals used in the
production of methamphetamine1'when they walked within 50 yards of
the garage.
Information in the warrant application about the informants
and their sources, combined with the officers1 investigation,
though less complete than would be desirable, is a basis for the
probability that contraband would be found at the Crowder
residence. The application stated that the fourth informant
possessed "proven reliability." The warrant application did not
report the source of the fourth, reliable, informant's knowledge.
However, the United States Supreme Court noted in Gates:
If, for example, a particular informant is known for
the unusual reliability of his predictions of certain
types of criminal activities in a locality, his failure,
in a particular case, to thoroughly set forth the basis
for his knowledge surely should not serve as an absolute
bar to a finding of probable cause based on his tip.
Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30, 76 L.Ed.2d at 545.
The third informant, although his reliability was not known,
gave some details and stated that he had personally observed the
lab and chemicals in Crowderls garage. An informant's personal
observation of criminal activity is not hearsay information.
Sundberq, 235 Mont. at 121, 765 P.2d at 740. The Supreme Court
also commented on an informant's personal observation in Gates:
Conversely, even if we entertain some doubt as to an
informant's motives, his explicit and detailed
description of alleged wrongdoing, along with a statement
that the event was observed firsthand, entitles his tip
to greater weight than might otherwise be the case.
Gates
I 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545. The
warrant application recited the third informant's tip that a
methamphetamine lab was located in Crowderls garage and his
description of the location of Crowder's property and garage. In
addition, the warrant gave the following information:
The informant also stated that he believes Jim Crowder
may also be growing marijuana on his property. This
confidential informant further stated that he believes
Jim Crowder has enough chemicals at his residence to
produce approximately two pounds of meth-amphetamine and
is likely to produce a large amount, possibly 1 or 2
pounds within the next week.
We find that sufficient details were provided to be considered
under Gates.
Crowder protests the two tips from nearly a year previous to
the warrant application as stale. ''[A] determination of staleness
in any given case depends largely on the nature of the property and
activity in issue.I1 State v. Walston (1989), 236 Mont. 218, 223,
768 P.2d 1387, 1390. By themselves the August and October 1988
tips would not have been enough to establish probable cause.
However, taken together with information gathered from later
informants, the tips helped to establish a pattern of ongoing
criminal activity. In addition, according to testimony, the first
informant, though anonymous, was known by sight to other officers
who recognized the informant as reliable.
"A magistrate's 'determination of probable cause should be
paid great deference by reviewing courts. Gates, 462 U.S. at
236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547 (quoting Spinelli v.
United States (1969), 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21
L.Ed.2d 637, 645). We hold that the circumstances set forth in the
warrant application--the tip from a reliable informant coupled with
an informant's personal observation, and corroboration of the
location and detection of an odor by the officers--viewed in their
totality, formed a substantial basis for the magistrate to conclude
that probable cause to find contraband or other evidence of
wrongdoing on the Crowder premises existed.
Did the District Court err in refusing to order disclosure of
the identities of the police informants?
Crowder alleges that disclosure of the identity of the police
informants was necessary to his defense because the informants "had
provided false information to the authorities and examination of
these informants would show that they were patently unreliable .
Montana Rules of Evidence provide:
(a) Rule of privilege. The United States or a state or
subdivision thereof has a privilege to refuse to disclose
the identity of a person who has furnished information
relating to or assisting in an investigation of a
possible violation of a law.
(c) Exceptions and limitations.
(2) ~estimonyon relevant issue. If it appears in
the case that an informer may be able to give testimony
relevant to any issue in a criminal case or to a fair
determination of a material issue on the merits in a
civil case to which a public entity is a party, and the
public entity invokes the privilege, the court shall give
the public entity an opportunity to show facts relevant
to determining whether the informer can, in fact, supply
that testimony.
Rule 502, M.R.Evid.
This Court has adopted the balancing test expressed in Roviaro
v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.
Disclosure of an informant's identity requires "balancing the
public interest in protecting the flow of information against the
individual's right to prepare his defense." Roviaro, 353 U.S. at
62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646. Disclosure "must depend
on the particular circumstances of each case, taking into
consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other
relevant factors. Id.
By statute the District Court need not order disclosure of the
identity of an informant who will not be called to testify if (1)
disclosure would llresultin substantial risk to the informant or
to his operational effectiveness; and (2) "failure to disclose
will not infringe the constitutional rights of the accused."
Section 46-15-324 (3) , MCA. The defendant must show the need for
revealing the informant's identity. Mere speculation or conjecture
about the relevance of the testimony is not adequate. State v.
Babella (1989), 237 Mont. 311, 315, 772 P.2d 875, 878.
Crowder maintains that the third informant lied because police
found neither glassware, chemicals, the finished product, nor
evidence of a marijuana growing operation as described in the
warrant application. While a methamphetamine lab was not
discovered, according to testimony offered at the pretrial hearing,
officers did seize articles consistent with methamphetamine
production, including gas masks, a coffee filter containing
methamphetamine, cooking instructions, and the recipe for
methamphetamine manufacture written on a coffee filter.
As for the marijuana growing operation, the warrant
application stated that the informant believed that marijuana was
being grown on Crowder's property, not that the informant had seen
the marijuana .
We note that it was particularly in the public interest not
to reveal the identity of the fourth informant who was being used
in another police investigation. Because Crowder failed to
demonstrate that the information supplied to police was false, we
affirm the District Court's refusal to order disclosure of the
informants1 identities.
I11
Did the District Court err in failing to join Counts I and I1
into a single count of possession of the dangerous drug
methamphetamine?
Crowder was charged and convicted of one count of criminal
possession of methamphetamine on his person and one count of
criminal possession of methamphetamine on his premises. These
charges arose from the search of Crowder's residence, where police
found a vial containing methamphetamine residue on Crowder's person
and discovered another vial containing methamphetamine residue in
Crowder's bedroom, as well as methamphetamine in a coffee filter
located in the garage.
Crowder asserts that I1principles of fundamental fairness
require that a defendant be charged only once for conduct which
amounts to the 'same transaction. See 46-11-501(1), MCA. The
State responds that the test to determine whether the defendant
has committed two offenses or only one is whether each count
requires proof of a fact which the other does not.
11
We have not previously addressed the issue of whether
possession "on the personvv and Iton the premisesIv constitute
separate offenses. Generally, under the Fifth Amendment to the
United States Constitution, applied to the states in 1969, a person
cannot be tried more than once for the same conduct. State v.
Wells (1983), 202 Mont. 337, 658 P.2d 381; Benton v. Maryland
(1969), 395 U.S. 784, 796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707,
The Constitutional prohibition against double jeopardy
protects a defendant both from multiple punishments imposed at a
single prosecution for the same offense and from multiple
prosecutions for offenses arising out of the same transaction.
State v. Palmer (1983), 207 Mont. 152, 158, 673 P.2d 1234, 1237.
In examining questions of double jeopardy, this Court has
consistently applied the test set forth in Blockburger v. United
States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. One issue
in Blockburqer was whether petitioner should have been convicted
of violations of two statutory provisions arising from a single
sale of morphine:
The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory ~rovisions,the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not.
Blockburser, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309
(emphasis added).
The Blockburqer test is a "test of statutory construction
. . . to determine whether Congress intended the same conduct to
be punishable under two criminal provision^.^^ Ball v. United
States (1985), 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d
740, 746. Since Blockburqer, the United States Supreme Court Ifhas
recognized that the Blockburqer test focuses on the proof necessary
to prove the statutory elements of each offense, rather than on the
actual evidence to be presented at trial." Illinois v. Vitale
(1980), 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228,
235.
This Court has employed the Blockburqer test to determine
whether a defendant can be charged and convicted of violating two
statutes for the same act or transaction. For example, we have
ruled that a defendant can be convicted of both sexual intercourse
without consent and aggravated kidnapping, State v. Clawson (1989),
239 Mont. 413, 781 P.2d 267; of both misdemeanor assault and sexual
assault, State v. Long (1986), 223 Mont. 502, 726 P.2d 1364; but
cannot be convicted, when the drugs are identical, of both
possession of dangerous drugs and possession of dangerous drugs
with intent to sell. State v. Peterson (1987), 227 Mont. 503, 741
P.2d 392.
In contrast, Crowder was charged with two violations of the
same statutory provision, 5 45-9-102, MCA, which provides in part:
A person commits the offense of criminal possession
of dangerous drugs if he possesses any dangerous drug,
as defined in 50-32-101.
Section 45-9-102(1), MCA. Thus, the question is whether Crowderls
possession of drugs on his person and possession of drugs on his
property constituted two separate acts of possession. See United
States v. Woods (6th Cir. 1978), 568 F.2d 509 (issue is whether
one course of conduct can result in multiple violations of the same
statute, rather than whether a single act violates a multiplicity
of statutes), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d
64 (1978).
The United States Supreme Court ruled on a similar question
in considering a second issue in Blockburqer. The petitioner,
convicted of two additional counts of selling morphine under a
single provision of the Narcotics Act, contended that because the
two sales in question were made to the same person within a short
time, they comprised a single continuing offense. Examining
legislative intent, the Supreme Court concluded that the statute
did not punish engaging in the business of selling dangerous drugs,
but penalized any sale:
Each of several successive sales constitutes a distinct
offense, however closely they may follow each other. The
distinction stated by Mr. Wharton is that "when the
impulse is single, but one indictment lies, no matter how
long the action may continue. If successive impulses are
separately given, even though all unite in swelling a
common stream of action, separate indictments lie."
Blockburqer, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 308
(citation omitted) ; see also Bell v. United States (1955), 349 U.S.
81, 75 S.Ct. 620, 99 L.Ed. 905; United States v. Universal C.I.T.
Credit Corporation (1952), 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed.
260. To determine the lrallowable
unit of prosecutionr1
courts look
to legislative intent since discretion is with the legislature to
impose punishments, subject only to constitutional limitations.
Bell
I 349 U.S. at 81-82, 75 S.Ct. at 622, 99 L.Ed. at 910. See
State v. Meadors (1978), 177 Mont. 100, 580 P.2d 903 (legislature
meant to provide distinct crimes for possession of different kinds
of dangerous drugs).
In this case, the statutory language clearly demonstrates that
the legislature intended to punish each separate llpossession~v
of
dangerous drugs, but we are still left with the question of what
constitutes a separate llpossession.~~
Generally, when defendant
possesses "the same controlled substance in the same place at the
same time, he commit[s] only one act of possession. United States
v. Johnson (D.C. Cir. 1990), 909 F.2d 1517, 1519; see also United
States v. Woods (6th Cir. 1978), 568 F.2d 509; united States v.
Williams (6th Cir. 1973), 480 F.2d 1204.
According to the legislature, possession is the Ilknowing
control of anything for a sufficient time to be able to terminate
control.I1 section 45-2-101(52), MCA. The elements of possession
are knowledge and control. State v. Krum (1989), 238 Mont. 359,
777 P.2d 889. In addition, this Court has distinguished between
"actual" possession and nconstructivell
possession:
Actual possession means that the drugs are in the
personal custody of the person charged with possession;
whereas constructive possession means that the drugs are
not in actual physical possession but that the person
charged with possession has dominion and control over the
drugs.
State v. Van Voast (Mont. 1991), 805 P.2d 1380, 1383, 48 St.Rep.
160, 161. Crowder's possession of drugs "on the person1'
constituted flactual"possession, while his possession of drugs "on
the premisesf1constituted llconstructive"
possession. We note that
the jury instructions included definitions of both ltactualll
and
lfconstructive"
possession.
In addition, federal courts have upheld separate convictions
based in part on the manner of possession, constructive and actual.
See United States v. Briscoe (7th Cir. 1990), 896 F.2d 1476, cert.
denied, - U.S. -, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); United
States v. Rich (8th Cir. 1986), 795 F.2d 680. We conclude that the
District Court did not err in failing to join the separate counts
of possession "on the personI1 and possession "on the premises.I1
Affirmed.
We concur:
Justices
Justice ~illiamE. Hunt, Sr., dissenting:
I dissent. The majority again appears to abandon "probable
cause1'for "remote possibility.
The purpose of the search warrant provision of the Fourth
Amendment to the United States Constitution is that the long and
powerful arm of the law may not reach into and disrupt people's
lives without reason. The four corners of the warrant must contain
facts sufficient to show that it is more probable than not that
fruits of a crime will be found.
Here we have almost 20 fully armed officers of the law
descending on a person's home, some of whom stay and turn it upside
down for five hours. What facts justify this drastic incursion
into the defendant's life? The four corners of the search warrant
contain: two stale informantsf tips; one tipster who said he had
seen a lab but offered no detail at all regarding it; one tipster
said to be reliable but with no basis for the reliability given in
the application; and f'corroborationfl
by the police of these
outdated or flimsy tips consisting of verifying that the suspect's
residence was in fact where the tipsters said it was. The
application also states that two officers walking a distance equal
to one-half of a football field, "detected an odor similar to that
of chemicals [which were never found] used in the production of
methamphetamine. f f
The chemicals used in the production of methamphetamine are
common compounds. They are not, like the odor of burning
17
marijuana, indicative of criminal activity. Nor is it suspicious
that the defendant's residence was located where the tipsters said
it was. So, we base a warrant on no independent corroboration of
not necessarily reliable tips, and it justifies a five hour search
of a person's house. This is not within the contemplation of even
the relaxed Gates standards for probable cause, let alone within
the parameters of the Fourth Amendment.
I must continue to dissent to opinions which leave open the
door to illegal incursion into homes and lives of citizens. If
anything, Montana's probable cause standard should be higher than
the federal standard, consistent with our expressed constitutional
right to privacy. Further, the recurrence in this Court of tenuous
probable cause showings proves the point that as long as we allow
questionable warrants to stand, the courts of this state will
continue to be clogged with appeals from diligent readers of the
state and federal constitutions.
I dissent to the second issue in the majority opinion because
the warrant makes no showing that the confidential informant is
reliable. In the absence of any additional information, the
defendant is unable to question the application to determine if the
informant even exists, let alone is reliable.
I dissent to the third issue in the majority opinion. The
majority's unprecedented decision that a suspect may be charged
with separate felony counts for the same drug found on the person
and on the premises is alarming.
18
The majority relies on Blockburser to support its conclusion
that each of Crowderls two possession charges necessitated proof
of a fact that the other did not. Blockburser provides that two
offenses can derive from the same act if each provision requires
proof of a fact which the other does not. The majority here
concludes that because it characterizes one possession as "actual"
and one as constructive," different proof was required for each,
and therefore, the Blockburser test applies.
But the fact is that it is the possession of the particular
drug, whether actual or constructive, that is the single item to
be proved. Sale of drugs presents a different situation, as each
sale is a separate transaction. And separate druss are meant to
be prosecuted separately, as we stated in State v. Meadors, cited
by the majority. But as the majority points out but then fails to
follow, "when the defendant possesses 'the same controlled
substance in the same place at the same time, he commit[s] only one
act of possession. 1 1 1 Citing United States v. Johnson, 909 F.2d
1517, 1519 (D.C.Cir. 1990) (emphasis added) .
In United States v. Woods, 568 F.2d 509 (6th Cir. 1978), the
Sixth Circuit Court of Appeals stated, regarding heroin possession:
[A]s long as the statute does not graduate the gravity
of the crime of possession of heroin by the quantity
possessed, we see no indication that Congress intended
to permit a multiplication of the offenses of possession
at any siven time by a defendant upon evidence that the
heroin may merely have been separately packaqed or
stashed.
Woods, 568 F.2d at 513 (emphasis added). Woods also explains that
the sentencing potentialities permit one conviction to accommodate
an inclusive possession conviction. See also, United States v.
Williams, 480 F.2d 1204 (6th Cir. 1973), (holding that only one
offense should have been charged when four separate packages of the
same drug were found). Further, the cases the majority cites as
upholding "separate convictions based on the manner of possession,
actual or constructive^ are not analogous to the facts before us.
United States v. Briscoe, 896 F. 2d 1476 (7th Cir. 1990), upholds
three separate charges where drugs were smuggled into the country
in the body cavities of three different women. United States v.
Rich, 795 F.2d 680 (8th Cir. 1986), upholds separate charges for
drugs found on a man's person at an airport, and later at his home.
Neither presents a case, like Crowderls, of separate charges for
possession "in the same place at the same time."
The decision to charge separate possessions of the same drug
separately has serious implications. Overzealous prosecutors may
find themselves able to charge a marijuana grower separately for
each plant, or a methamphetamine manufacturer for each package of
separately stored contraband. This departure should not be
condoned by this Court.
I would vacate the sentence and remand to the District Court.
Justice Terry N. Trieweiler dissenting:
I concur in the dissent of Justice Hunt.