NO. 91-588
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RUSSELL ALLEN WILSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Donahoe & Yeshe, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Barbara C.
Harris, Assistant Attorney General, Helena, Montana
Mike McGrath, County Attorney, Carolyn Clemens,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: July 2, 1992
Decided: September 28, 1992
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Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the First Judicial District
Court, Lewis and Clark County, denying the defendant's motion to
suppress evidence obtained during a search of his home. We
reverse.
The sole issue is whether the District Court erred in denying
defendant's motion to suppress.
The facts which supported the search warrant application
follow. Detective McComack received an anonymous Crimestoppers
call alleging that the defendant was conducting a marijuana growing
operation. The caller provided the defendant's name, address,
place of employment, the color and make of his vehicle and a
description of the exterior of his house. He stated that the
defendant had automatic weapons in the residence and that there was
considerable traffic to and from the house daily. Finally he
contended that he had personally observed the marijuana growing
operation within the last few days and had seen bags of marijuana
in the house. He provided no further information about the
marijuana growing operation.
As a result of this information the detective assigned,
obtained an investigative subpoena forthe electric power bills for
the defendant's residence. The search warrant application stated
that the "[plower bills for the residence reflect power usage
consistent with that of a grow operation." Nothing more was stated
relative to the power bills.
The search warrant application was granted and a search of the
2
residence revealed marijuana plants, scales, grow lamps, hash
pipes, bagged marijuana and money. The defendant was arrested and
charged under 5 45-9-103, MCA.
The defendant filed a motion to suppress evidence obtained in
the search and the motion was denied on June 25, 1991. After final
judgment this appeal followed.
The core question is whether the application for a search
warrant was sufficient to issue a search warrant. "To address the
issue of probable cause for issuance of a warrant, this Court has
adopted 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. .. ." State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d
299, 302. "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
'veracity' and '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." State v.
OINeill (l984), 208 Mont. 386, 394, 679 P.2d 760, 764. "[Tlhe duty
of the reviewing court is to ensure the magistrate had a
'substantial basis' for . . . conclud[ing] that probable cause
existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d
at 548. See also Crowder, 810 P.2d at 302. "The magistrate's
determination of probable cause should be paid great deference by
reviewing ~ourts.~'State v. Sundberg (1988), 235 Mont. 115, 123,
765 P.2d 736, 741. ' O r function is not to review de novo the
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magistrate's determination that probable cause existed justifying
the issuance of a search warrant." State v. Baldwin (1990), 242
Mont. 176, 183, 789 P.2d 1215, 1220.
Defendant argues that the caller provided little detail which
would establish his credibility and affirm his personal knowledge
of the marijuana growing operation. He also contends that the
detective did not indicate his experience in drug investigations,
particularly in analyzing power consumption records.
The Crimestoppers caller did say he had personally observed
the marijuana growing and bags of marijuana around the defendant ' s
house. However, he did not describe the interior of the house, the
location of the marijuana growing operation nor did he describe the
marijuana growing operation itself. He gave no further basis for
his knowledge other than his bare assertion that he had personally
seen the operation. See State v. Schaffer (Idaho App. 1984), 693
P.2d 458, 464. See also State v. Valley (Mont. l992), 830 P.2d
1255, 49 St.Rep. 30, 31. "[Tlhere was no inclusion of such detail
that the infonation became self-verifying. . . . Ir Valley, 830
P.2d at 1258, 49 St.Rep. at 32. See also Schaffer, 693 P.2d at
464.
The only infonation about power usage in the search warrant
application was the conclusory statement that defendant's power
bills reflected a power use "consistent with that of a grow
operation." No data from the records was included in the
application nor any information concerning the detective's
experience analyzing power usage records.
Sufficient information must be presented to the
magistrate to allow that official to determine probable
cause; his action cannot be a mere ratification of the
bare conclusions of others. In order t o ensure t h a t such
an abdication of the magistrate's duty does not occur,
courts must continue ta conscientiously review the
sufficiency of affidavits on which warrants are issued.
Gates, 462 U.S. at 239.
In the present case, the application for t h e search warrant
contained conclusory statements with respect to the informant's
personal knowledge and t h e analysis of the power usage records.
Detail was not provided to support the conclusions drawn w i t h i n the
application. Conclusory statements will not provide substantial
basis to conclude that probable cause existed to issue a search
warrant. The motion to suppress should have been granted.
REVERSED.
We concur:
Chief Justice -.
.
September 28, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Michael Donahoe, Esq.
Donahoe & Yeshe
P.O. Box 413
Helena, MT 59624
Hon. Marc Racicot, Attorney General
Barbara Harris, Assistant
Justice Bldg.
Helena, MT 59620
Mike McGrath, County Attorney
Carolyn Clemens, Deputy
L & C County Courthouse
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATF OF MONTANA