No. 90-275
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
NEAL VALLEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Robert Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace (argued), Attorney at Law,
Missoula, Montana
For Respondent:
Hon. Marc ~acicot, Attorney General, Helena,
Montana; Jennifer Anders (argued), Assistant
Attorney General, Helena, Montana
Robert Deschamps, 111, Missoula County Attorney,
Missoula, Montana
Submitted: September 10, 1991
141992 Decided:
e
January 14, 1992
Filed:
CLERK OF SLIPRETSIE COUR-I
STATE OF MONTANA a . + >L&
d
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
After final judgment, defendant, Neal Valley, appeals from a
decision of the Fourth Judicial District, Missoula County, denying
his motion to suppress physical evidence based on lack of probable
cause for issuance of a search warrant. We reverse.
The sole issue on appeal is whether the District Court erred
in denying defendant's motion to suppress.
On March 31, 1988, the Missoula County Sheriff's Department
applied to District Court for a warrant to search the residence of
defendant, Neal Valley. The application for the search warrant was
based on anonymous and confidential tips. The tips as set forth in
the application contain the following information:
1) August 22, 1981--An individual living in the Potomac area
contacted the sheriff's department and said that in January of 1981
Neal Valley had informed him that he had been the victim of a theft
of $15,000.00 worth of marijuana, a shipment Valley had received
from Florida and was storing in his attic waiting to sell. Because
the tip was stale at the time, the sheriff's office took no action.
2) May 22, 1986--An individual from the Potomac area
contacted the sheriff's department and said that Valley was growing
and selling marijuana from his residence. The individual further
stated that Valley had high school kids doing odd jobs at his
cabinet shop, and Valley sometimes pays them with marijuana. The
individual said that he knew this because Valley supplied his son
with marijuana until the time his son joined the army. The
sheriff's department took no action.
2
3) May 28, 1987--A confidential informant, other than the
individuals mentioned above, contacted the sheriff's department and
said Valley was growing, packaging, and selling marijuana. The
informant further stated he had personally observed the operation
located in a large red barn-like building that also housed Valley's
cabinet shop. The informant stated that since then the operation
was expanded into several other buildings on the property and
possibly was heated by solar panels. The sheriff's department took
no action.
4) March 28, 1988--The sheriff's department received a
crimestoppers tip in which the caller said that Valley was selling
marijuana from his residence and he uses the caller's son to
deliver marijuana to customers. The caller stated that he lives in
the Potomac area and has personal knowledge of the transactions.
The caller said that this was the first time he had ever contacted
law enforcement, but he would call again if he found out more.
5) March 30, 1988--The above crimestoppers tipster called
again to the sheriff's department and related that on the previous
night he overheard a conversation in the Potomac Bar between four
individuals in which two of them stated that they were going to
Valley's residence to purchase marijuana. The caller described the
location of Valley's residence and described the property as having
several outbuildings, including a large red barn, and a gate
bearing the name "Valley" at the entrance to the property.
On March 31, 1988, detectives Terry Lambert and Larry Jacobs
drove to the Potomac area and located Neal Valley's residence.
They saw a large red barn and several outbuildings along with the
single story brown wood framed residence. Based upon all of the
above information the District Court found probable cause and
issued the warrant.
On April 1, 1988, the detectives searched the defendant's
residence. The search recovered several pounds of marijuana,
marijuana paraphernalia, and evidence of a marijuana growing
operation.
On June 23, 1988, defendant moved to suppress the evidence
obtained as a result of an illegal search. At a March 3, 1989
hearing, the District Court concluded that the first three tips in
the application for the warrant were in and of themselves too
remote to be a basis for probable cause. The information in the
application for the warrant which the court did not consider too
remote were the two Crimestopper's tips given by the same person on
March 28 and March 30, 1988. On November 8, 1989, the District
Court denied Valley's motion to suppress, based on this Court's
application of the I1totalityof the circumstance^^^ test in State v.
Rydberg (1989), 239 Mont. 70, 778 P.2d 902.
This appeal followed.
Section 11 of Article I1 of the Montana Constitution protects
the homes of the citizens of this State against unreasonable
searches and seizures. Section 11 provides in part: "No warrant
to search any place, or seize any person or thing shall issue
without describing the place to be searched or the person or thing
to be seized, or without probable cause, supported by oath or
affirmation reduced to writing." A showing of facts in the
application for a search warrant is required to establish there is
probable cause to believe that contraband or evidence is to be
found at the place to be searched at the time the warrant is
issued. Under the Ivtotality of the circumstance^^^ test set forth
in Illinois v. Gates, the factors to be considered in determining
probable cause are:
[tlhe 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 vvveracityu and I1basisof knowledgew of persons
supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will
be found in a particular place. 462 U.S. 213,238 (1983).
We have since adopted the totality of the circumstances test.
State v. OrNeill (1984), 208 Mont. 386, 679 P.2d 760. @'The
totality of the circumstances test is fact specific. See State v.
Olsen (Minn. 1989), 436 N.W.2d 92. Informantsv statements and tips
are to be taken into consideration.
In the instant case, the major problem with the first three
statements is they are stale. They do not give any indication that
contraband or evidence would presently be at the place to be
searched. The tips range in time and age from eleven months to
over seven years. After receiving the tips, no independent
investigation was made to verify or corroborate the tips. Such
tips do not ripen and bear fruit on their own, or by the passage of
time. Time does just the opposite. Their value recedes with the
dimming of memories, changes of circumstances and availability of
witnesses. The passage of time makes it all the more imperative
that a current investigation be made. The failure to verify or
corroborate, or setting forth valid reasons why not, distracts from
the probability proof in the application. Common sense dictates
further investigation.
In determining probability, it is not the number of
statements, tips or events that is determinative relative to the
common sense approach, it is the probative force of one, some or
all of them. Insufficient data to establish probable cause is not
strengthened by number or repetition.
Stale information along with the lack of any evidence of the
informant's veracity and the lack of investigation, defeats any
valid showing which can serve as a basis for probable cause. We
agree with the District Court in not taking into consideration the
statements in tips No. 1, 2 and 3.
The only current information available to law enforcement was
tips four and five. These were crimestoppers tips. They were
given anonymously by a citizen informant. Did the information
contained in such tips establish probable cause? The Iowa Supreme
Court in analyzing the reliability of a citizen informant said that
a citizen informant is presumed reliable. However, this is not a
per se rule. The reliability of a citizen informant is generally
shown by the very nature of the circumstances under which the
incriminating information became known. State v. Niehaus (Iowa
1990), 452 N.W.2d 184, 189.
One of the circumstances here is that the informant is
anonymous. Usually a citizen informer known to the police is more
probative. Then under what circumstances did this incriminating
information become known to the informant? He stated he had
personal knowledge of the sale of marijuana by the defendant from
defendant Is house in tip No. 4, but gave no basis for his knowledge
or any further detail relative to his personal knowledge. He also
stated his son was delivering marijuana for the defendant but does
not state how he obtained this information or any further details
related to the same. In tip No. 5, he does disclose the source of
his information was overhearing a conversation in a bar by two bar
customers who stated they were going to the defendant's home to buy
marijuana . The facts of the description and location of
defendant's property were easily confirmable by a driveby and can
hardly be probative to the probability of contraband therein.
Common sense required further investigation to confirm the
reliability of these tips.
Given the circumstances, we conclude a magistrate could not
properly assess the credibility of the informant or his sources.
The underlying circumstances from which an informant receives his
information can be the basis of his knowledge but here such
circumstances were nominal and there was no inclusion of such
detail that the information became self-verifying or was able to be
sufficiently corroborated. See State v. Schaffer, 107 Idaho 812,
693 P.2d 458 (Ct.App. 1984).
We conclude that the application for the warrant did not
contain sufficient facts and circumstances under the Gates test.
If this search were to be upheld, the law would allow an
anonymous tipster to call the police on a phone and state that John
Doe is selling marijuana, the tipster's son is delivering it (who
told him his son is delivering is not stated), and the tipster
heard bar talk of John selling and that John lives at such and such
an address in a brown house with a red garage. No other
verification, corroboration or facts would need to be presented.
The magistrate would have no way of ascertaining whether this tip
was rumor, speculation, vendetta, reprisal, or gossip. It is
contrary to common sense that this information is a basis for
probable cause to search a citizen's home and invade his privacy.
The motion to suppress should have been granted and the
judgment reversed and the cause remanded for further proceedings in
accordance with this opinion. /
Justice I
'
We Concur:
u
Chief Justic
Justices
._
a , .* .
,
Justice Fred J. Weber specially concurs as follows:
I concur with the majority opinion that the motion to suppress
should have been granted and the judgment reversed. I specially
concur in order to emphasize that the absence of adequate police
investigation caused the reversal.
I agree with the majority's conclusion that tips 1, 2 and 3
had not been adequately investigated by the police and therefore
could not properly be considered. I do emphasize that the
staleness of these claims is not only because of age of the
information, but results primarily from the absence of any prompt
corroborating police investigation.
The majority emphasizes the inadequacy of the information
contained in tips 4 and 5 which were the crimestopperst tips given
by an anonymous citizen informant. Such conclusions may tend to
indicate that crimestoppers' tips are not usable. Experience has
shown that crimestoppers' tips frequently afford a basis for arrest
and ultimate conviction. The key missing link as to both tips 4
and 5 was the absence of an adequate law enforcement investigation
to confirm the truthfulness of the tips. Where crimestoppers' tips
and other similar tips are received, I emphasize the necessity of
a prompt and adequate law enforcement investigation.
Unfortunately such investigation was not conducted in the
present case. An adequate law enforcement investigation sufficient
to demonstrate probable cause would have prevented the dismissal of
the conviction of a clearly guilty defendant.
I join in the judgment of reversal in this case.