NO. 92-059
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
plaintiff and Appellantt
-vs-
RODNEY WILLIAM HOOK,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Edward McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General,
Cregg W. Coughlin, Assistant Attorney General,
Helena, Montana
George H. Corn, Ravalli County Attorney, Hamilton,
Montana
For Respondent:
Michael G. Alterowitz; Connell, Beers & Alterowitz,
Missoula, Montana
Submitted on Briefs: July 2 , 1992
Filed:
Clerk
Justice R. C, McDonough delivered the Opinion of the Court.
T h i s is an appeal by the State of Montana of an order of the
Fourth Judicial District Court, Ravalli County, granting the
defendant I s motion to suppress evidence obtained in a search of his
residence. We reverse.
The only issue on appeal is whether the District Court erred
in granting defendant's motion to suppress.
This case evolved from an anonymous telephone call received by
the Ravalli County Sheriff's Department, claiming that Rodney Hook
was conducting a marijuana growing operation in a cabin which
served as his residence. The caller provided the general location
of the cabin, the address and a description of the exterior of the
cabin, He also described the vehicle Mr. Hook drove. He stated
that there were three bedrooms upstairs and the marijuana growing
operation was in the first bedroom on the right on the second
floor. He further explained that there were approximately forty
plants ready to harvest which were grown under two 1000 watt grow
lights. The phone call was terminated before the dispatcher could
receive any more information.
The call was reported to the detective who conducted an
investigation of some of the information. He checked the telephone
book to confirm Mr. Hook's name and address and then drove out to
the residence to confirm the caller's description of the house
exterior. He also sought an investigative subpoena to obtain Mr.
Hookiselectric power usage records because he knew from experience
that marijuana growing operations typically consume large amounts
of electric power. Finally, he checked the National Crime
~nformationComputer system and learned that Mr. Hook had been
previously charged with possession of a controlled substance.
When Detective Bailey received the investigative subpoena, it
revealed that Mr. Hook's use of electric power was 25 times greater
than the previous tenant's electrical use. Mr. Hook's electricity
use in the past five months had averaged 2,446 kwh per month
although the previous tenant averaged 970 kwh per month. Montana
Power Company employees told the detective that the average
residential use was 740 kwh per month with an alternate heat
source.
Detective Bailey also received a four-day power usage record
from the power company. On June 6, Mr. Hook called the power
company to inform it that he was making the cabin his permanent
residence. As a cabin, a power usage reading was only made once
every six months as compared to monthly for a residence. He also
provided the power usage reading for that day. The power company
went out to the cabin on June 10, 1991 and calculated a four-day
power usage of 710 kwh. If power usage continued at that rate, the
monthly total would be approximately 5000 kwh.
Detective Bailey provided the above information and his
history of investigating twelve prior marijuana growing operations
in the application for a search warrant. The search warrant
application was granted and on June 11, 1991, Detective Bailey's
search of Mr. Hook's residence revealed marijuana plants, marijuana
growing equipment, dried marijuana and drug paraphernalia. Mr.
Hook admitted the marijuana was his and was subsequently arrested
and charged with a violation of 5 45-9-103, MCA and of 5 45-10-103,
MCA .
Mr. Hook filed a motion to suppress evidence recovered in the
June 11 search and his motion was granted on December 12, 1991.
This appeal by the State of Montana followed.
The core issue is the sufficiency of the application of the
search warrant. "To address the issue of probable cause for
issuance of a warrant, this Court has adopted the 'totality of the
circumstances1 test set forth in Illinois v. Gates (1983), 462 U.S.
213, 103 S.Ct. 2317, 76 L.Ed.2d 527. . . .
I
' State v. Crowder
(1991), 248 Mont. 169, 173, 810 P.2d 299, 302. V h e 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
knowledgef 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 . OrNeill (1984), 208 Mont.
386, 394, 679 P.2d 760, 764. I9[T]he duty of the reviewing court is
to ensure the magistrate had a 'substantial basisi for . . .
conclud[ing] that probable cause existed. It Gates, 462 U.S. at 238-
39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See Crowder, 810 P.2d at
302. ItThemagistrate's determination of probable cause should be
paid great deference by reviewing courts.lt State v. Sundberg
(1988), 235 Mont. 115, 123, 765 P.2d 7 3 6 , 741. "Our function is
not to review de novo the 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.
The factual information provided above formed the basis for
the magistrate's conclusion that there was probable cause to issue
the search warrant. Probable cause to issue a search warrant:
[I]s not a prima facie showing of criminal activity, but
only its probability. 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. [Citations omitted.]
Sundberq, 765 P.2d at 739.
We conclude there was probable cause to issue a search warrant
for the Hook residence. The confidential informant provided
detailed information about the defendant and the marijuana growing
operation. "[Blecause an informant is right about some things, he
is more probably right about other things,. . . including the claim
regarding the ... illegal activity. . . ." Gates, 462 U.S. at
The detective confirmed much ofthe informant's information as
well as obtaining the power usage bills for the defendant's
residence and the defendant's arrest record. He stated the basis
of his expertise in these types of investigations and recited in
detail the power usage, the times of residence by the defendant,
previous usage by former occupants, normal residential usage, and
comparisons as to these facts both specifically and generally. "It
is enough, for purposes of assessing probable cause, that
'[c]orroboration through other sources of information reduced the
chance of a reckless or prevaricating tale,' thus providing 'a
substantial basis for crediting the hearsay.'" Gates, 462 U.S. at
244-45, 103 S.Ct. at 2335, 76 L.Ed.2d at 552. "[I]nformation in
the form of an anonymous tip from an informant whose reliability is
established by independent corroboration may serve to establish
probable cause." State v. Deskins (1990), 245 Mont. 158, 162, 799
P.2d 1070, 1073.
The defendant states that there are many legal reasons for his
high power usage but he provides no reasons or rationale for the
phenomenon. "Although high power consumption alone will not
establish probable cause for a search, it may be a factor in
determining whether the affidavit as a whole reaches that level."
State v. Carter/Grant (Or. App. l99O), 790 P.2d 1152, 1156. See
also State v. Nuttall (Or. App. 1989), 776 P.2d 26, 29; State v.
Sterling (Wash. App. 1986), 719 P.2d 1357, 1360; State v. Ledbetter
(Idaho App. 1990), 794 P.2d 278, 281.
Detective Bailey also stated on his search warrant application
that the defendant had a prior arrest record in California for
possession of a controlled substance. The officer did no further
investigation of this incident. However, this factor, though not
probative of commission of a crime, is one of the many factors to
be considered under the totality of the circumstances test.
The defendant's argument that the handwritten and typed notes
of the dispatcher and the search warrant application are not
exactly the same is without merit. None of the discrepancies are
significant. The same basic information is contained in the forms
and there is no evidence that the information was concocted by the
dispatcher. These types of paperwork "are normally drafted by
nonlawyers in the midst and haste of a criminal investigation."
Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546.
In conclusion, the defendant has not met his burden of
overcoming the presumption that the magistrate properly issued the
search warrant. The factors present in this case, viewed in their
totality, provide a substantial basis for a magistrate to conclude
that probable cause to issue a search warrant existed.
REVERSED.
Justice / ,
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:
George H. Corn
Ravalli County Courthouse
Courthouse Box 5008
Hamilton, MT 59840
Hon. Marc Racicot, Attorney General
Cregg W. Coughlin, Assistant
Justice Bldg.
Helena, MT 59620
Michael G. Alterowitz
Connell, Beers & Alterowitz
P.O. Box 7307
Missoula, MT 59807-7307
ED SMITH
CLERK OF THE SUPREM:E COURT
STATE OF MONTANA
BY:
Depu
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