No. 92-096
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
HOWARD T H O m S CAMPBELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. arki in, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David E. Stenerson, Hamilton, Montana
For Respondent :
Hon. Marc ~ a c i c o t ,Attorney General
Carol E. schmidt, ~ s s i s t a n tAttorney General
Helena, Montana
Robert L. Deschamps, 111, County Attorney
Karen Townsend, Deputy County Attorney
Missoula, Montana
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.. Submitted on Briefs: July 23, 1992
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Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the Fourth Judicial
District Court, Missoula County, denying defendant's motion to
suppress evidence obtained in a search of defendant's home on July
18, 1991. We affirm.
The issues before the Court are:
1. Whether the District Court erred in denying defendant's
motion to suppress; and
2. Whether the District Court should have required the State
to release the identities of the informants.
The facts supporting the search warrant include: (1) On July
15, 1991, a reliable informant reported to Detective Fowlkes that
another person had observed a marijuana growing operation in Howard
Thomas Campbell (Thomas) and Christina Campbell's bedroom at 2225
South 7th Street West within the last two weeks. The informant
also said that Thomas was distributing cocaine in the Missoula
area. (2) On that same day, Detective Jacobs confirmed that the
consumers responsible for the power bills at 2225 South 7th Street
West were Thomas and Christina Campbell. (3) On July 16, 1991,
Detective Peterson obtained a description of the Campbell
residence. (4) He also checked Narcotics intelligence files which
revealed that: (a) On May 8, 1989, Larry Weatherman of the Missoula
County Sheriff's Office was informed by a confidential informant
that Thomas was receiving cocaine from a person known in the area
as a cocaine distributor. (b) Detective Eggett had responded to
and confirmed a report on July 29, 1989, that Christina Campbell
had received a gunshot wound. Initially, it was thought to be an
accident but a reliable informant later stated that the shooting
was intentional to prevent her from disclosing her husband's drug
problem. (c) A confidential informant told Detective Jacobs on
August 16, 1990, that Thomas was distributing cocaine in the
Missoula area and he could also obtain large quantities of
marijuana. He also reported that Thomas had two vicious pit-bull
type dogs. (d) Detectives Lewis and Jacobs responded to a call
from the landlord on September 10, 1990, to investigate the
residence at 2345 West Kent, Thomas' former rental house. An
inspection of the residence uncovered the remains of an abandoned
marijuana growing operation, including one-eighth ounce of
marijuana and marijuana stems. The former landlord also reported
that Thomas had 3 pit-bull dogs and had "beware of dog" signs
posted on the property. (5) Finally, Detective Peterson obtained
an investigative subpoena to review the power usage records for
2225 South 7th West. The analysis revealed that Thomas' power
usage fell within the normal range from November 1990 through April
1991 but increased dramatically in May of 1991 even though the
natural gas consumption had decreased considerably. (The large
increase actually occurred in June 1991, not May, but this error
was later corrected.)
The search warrant application was granted on July 16, 1991
and the search on July 18 disclosed marijuana, marijuana plants,
literature on growing marijuana, marijuana paraphernalia and plant
food. The defendant was charged with criminal possession of
dangerous drugs and criminal possession of drug paraphernalia.
Thomas filed a motion to suppress the evidence recovered in
the search. The search warrant was upheld by the District Court
and after final judgment this appeal by the defendant followed.
I
The core question is the sufficiency of the application for 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 (lggl), 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 (1984), 208 Mont. 386, 394,
679 P.2d 760, 764. "[Tlhe duty of the reviewing court is to ensure
the magistrate had a 'substantial basis1 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 Crowder, 810 P.2d at 302. '!The
magistrate's determination of probable cause should be paid great
deference by reviewing courts.I1 State v. Sundberg (1988), 235
Mont. 115, 123, 765 P.2d 736, 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.
This case is illustrative of the classic Gates totality of the
circumstances test. It also meets previous established tests.
Some of the factors at issue here are of little probative value
alone but taken together, under the Gates test, there is
substantial evidence to conclude that probable cause existed to
issue the search warrant.
The early "tipst1,provided by the confidential informants,
claimed that Thomas was involved in obtaining and distributing
drugs such as cocaine and marijuana. These tips, by themselves,
are of questionable probative value and would be "stale" without
more.
Where the affidavit recites a mere isolated violation it
would not be unreasonable to imply that probable cause
dwindles rather quickly with the passage of time.
However, where the affidavit properly recites facts
indicating activity of a protracted and continuous
nature, a course of conduct, the passage of time becomes
less significant.
Together with the current tip from a reliable informant, the
earlier tips have greater force. See State v. Walston (1989), 236
Mont. 218, 222-23, 768 P.2d 1387, 1390. (Also of note is the fact
that Detective Fowlkes stated on the warrant that the current
informant was reliable because he had given reliable information in
the past.) These tips together support an argument that the
defendant was involved in on-going criminal activity. See Crowder,
810 P.2d at 303.
Other factors add to the weight of the argument that the
magistrate had probable cause to issue a search warrant. The
evidence of a marijuana growing operation in Thomasf former
residence, which was covered with warnings about his dogs, further
adds to the probability that Thomas was involved in criminal
activity. The dramatic increase in power consumption in June of
1991 adds some value to the State's case. Moreover, the shooting
incident, in conjunction with other facts, increased the
probability that the defendant was growing marijuana. All the
facts contained in the search warrant, in their totality, combine
to provide a substantial basis to conclude that probable cause
existed to issue a search warrant.
I1
Defendant contends that the District Court erred in denying
his motion to disclose the identity of the informants. He insists
that the State did not meet its burden of showing the need for
nondisclosure. The State, however, argues that the District Court
order was correct because the defendant made only bald assertions
about the informants and why they were unreliable. Also, the State
asserts that the defendant did not meet his burden of demonstrating
that his need to know the identities of the informants outweighed
the State's privilege of nondisclosure.
The State has the privilege to refuse to disclose the name of
an informer in a case under certain circumstances. Rule 502,
M.R.Evid., and 5 46-15-324(3), MCA.
Rule 502, M.R.Evid., provides that:
Rule 502. Identity of informer.
(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
(1) Voluntary disclosure; informer a witness. No
privilege exists under this rule if the identity of the
informer or the informer's interest in the subject matter
of the informer's communication has been disclosed to
those who would have cause to resent the communication by
a holder of the privilege or by the informer's own
action, or if the informer appears as a witness for the
public entity.
Working in conjunction with Rule 502, M.R.Evid., is § 46-15-
324 (3), MCA (l989), which states:
(3) Disclosure of the existence of an informant or
of the identity of an informant who will not be called to
testify is not required if:
(a) disclosure would result in substantial risk to
the informant or to his operational effectiveness; and
(b) the failure to disclose will not infringe the
constitutional rights of the accused.
"The purpose of the privilege is the furtherance and
protection of the public interest in effective law enforcement.
The privilege recognizes the obligation of citizens to communicate
their knowledge of the commission of crimes to law-enforcement
officials and, by preserving their anonymity, encourages them to
perform that obligation." Roviaro v. U.S. (1957), 353 U.S. 53, 59,
In order to claim the privilege, the State must meet a
balancing test adopted by the Montana Supreme Court from Roviaro.
State v. Babella (1989), 237 Mont. 311, 772 P.2d 875. This test:
[Clalls for balancing the public interest in protecting
the flow of information against the individual's right to
prepare his defense. Whether a proper balance renders
nondisclosure erroneous 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.
Babella, 772 P.2d at 876. "In this balancing test the burden is on
the defendant to show the need for disclosure, and this need must
be one which overrides the government's interest. Mere speculation
will not suffice." Babella, 7 7 2 P.2d at 8 7 8 (emphasis added).
In the instant case, the defendant contends that the chief
informant made sexual advances toward his wife, Christina which
were rejected and he has had several altercations with the
defendant. The defendant claims that he was able to determine the
identity of this informer after he had entered his pleas. He
further claims that if he had known the identity of the informant
earlier, a simple hearing would have established that the
information that was reported to the authorities was erroneous. He
also states that another informant had made sexual advances toward
his daughter, giving that informant a reason for a vendetta against
the defendant.
However, the defendant provides no facts to support his
statement that two of the informants have a reason to falsify
information about his activities, thereby violating his
constitutional rights. He makes a bare assertion that these
informants made sexual advances toward his wife and daughter. No
8
affidavits containing factual information about these situations
were presented by the defense. The defendant must produce
something more concrete than conclusory statements about
confidential informants and the information they provide. The
defendant has introduced no evidence to show that his
constitutional rights will be violated by the State's failure to
disclose the identities of the informants nor made any showing that
he needs the identities of the informants in order to establish an
adequate defense. In conclusion, the defendant submits no set of
facts which would tip the balance in his favor under the Roviaro
test.
The District Court correctly concluded that the magistrate had
a substantial basis upon which to issue the search warrant and that
the identity of the informers should not be disclosed.
Affirmed .
We concur:
Chief Justice
.
.
September 28, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, preprtid, to the following
named:
David E. Stenerson
Attorney at Law
P.O. Box 1667
Hamilton, MT 59840
Hon. Marc Racicot, Attorney Genera1
Carol E. Schmidt, Assistant
Justice Bldg.
Helena, MT 59620
Robert Deschamps, 111, County Attorney
Missoula County Courthouse
Missoufa, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA