NO. 9 3 - 0 7 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Appellant,
v.
DAN RINEHART,
Defendant and Respondent.
****************et4
STATE OF MONTANA,
Plaintiff and Appellant,
v.
CHARLES W. McATEE,
Defendant and Respondent.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General: Micheal
Wellenstein, Assistant Attorney General, Helena
Montana
Larry D. Epstein, County Attorney, Cut Bank, Montana
For Respondents:
James A. Johnson, Shelby, Montana (Rinehart)
Robert A. Yunck, Cut Bank, Montana (McAtee)
Submitted on Briefs: September 17, 1993
Decided: December 2, 1993
Filed:
c.2 STLid
CLERK OF S"P"EME COUR'I
STAlE OF MONTANA
i
Clerk
Honorable Jeffrey M. Sherlock, District Judge, delivered the
Opinion of the Court.
The State of Montana appeals an order of the Ninth Judicial
District Court, Glacier County, suppressing evidence seized from
defendant Dan Rinehart's residence pursuant to a search warrant
issued July 8, 1992. The District Court held that the affidavit
supporting the application for the search warrant failed to
establish probable cause. We reverse.
During the first week of June 1992, the Glacier County
Sheriff's Office received a referral from Officer Michael Parker,
Indian Investigator for the Bureau of Indian Affairs (BIA) on the
Blackfeet Reservation, concerning a Crimestoppers' tip received by
the BIA. The anonymous tip provided information that Dan Rinehart
(Rinehart), a non-Indian resident on the reservation, was growing
marijuana at his home.
On or about June 18, 1992, the Glacier County Sheriff's Office
received a report from Officer Dale Stone, Assistant Chief of
Police of the Columbia Falls Police Department, regarding allega-
tions made by B.W., a thirteen-year-old girl, that Rinehart had
sexually assaulted her in his home in Glacier County. This report
also stated that B.W. had described a marijuana-growing operation
that Rinehart conducted in a concealed room in his home.
Glacier County Sheriff's Deputies Wayne Dusterhoff and Audrey
Anderson interviewed B.W. in Columbia Falls on June 25, 1992. In
addition to discussing the sexual assault allegation, the deputies
questioned B.W. regarding whether Rinehart was growing marijuana.
2
B.W. stated to the deputies that she had personally observed
Rinehart's grow operation. She described the location of the
concealed room in Rinehart's residence and also described the
marijuana plants she had seen. B.W. told the deputies how Rinehart
picked the leaves from the plants and dried them out, that he
smoked marijuana, and that he had books on growing marijuana.
Officer Stone had told Deputy Dusterhoff that in the past B.W.
had provided information to the Columbia Falls police that led to
a criminal conviction and that B.W. was a reliable witness.
Based on the information from B.W. and the Crimestoppers' tip,
Deputy Dusterhoff submitted an application for a search warrant on
July a, 1992, to search Rinehart's residence. The District Court
issued the warrant on July 8, 1992, and authorities from the
Glacier County Sheriff's Office, the BIA and the FBI conducted the
search the following day. During the search, the authorities
seized a large amount of drying marijuana and various items used in
growing marijuana.
As a result of the search, Rinehart and his nephew, Charles
McAtee, were placed under arrest. On October 1, 1992, both
defendants filed motions to suppress the evidence seized pursuant
to the search warrant on the grounds that the search warrant was
unlawful due to lack of probable cause. The District Court
conducted a joint hearing on the motions on October 21, 1992.
The District Court issued a memorandum and order on December
11, 1992, granting the defendants' motions to suppress the
3
evidence. In its order, the District Court excised two statements
from the search warrant application as being intentionally false or
made with a reckless disregard for the truth. The court then
examined the application without the excised statements and found
that the application did not provide a substantial basis for
concluding that probable cause existed under the totality of the
circumstances. Specifically, the court found that the uncorrobo-
rated Crimestoppers' tip had little or no probable cause value and
that the search warrant application failed to adequately demon-
strate the reliability of B.W. as an informant. The State appeals
that order.
The issue on appeal is whether the District Court erred in
determining that the application for the search warrant lacked
probable cause.
The search warrant application, as excised by the District
Court, related the following facts in support of probable cause:
During the first week in June, 1992, Glacier County
officials, and specifically your affiant, received a
referral from Officer Mike Parker, Indian Investigator
for the Bureau of Indian Affairs on the Blackfeet
Reservation, that the crimestoppers telephone system at
Browning had received an anonymous tip that Dan J.
Rinehart, a nonmember, was growing marijuana at his home
on U.S. 89 North of Browning in the Montana Retreat
Subdivision.
Thereafter, Officer Dusterhoff, your affiant, on the
18th day of June, 1992, received a report from Officer
Dale Stone., Assistant Chief of Police of the Columbia
Falls Police Department, regarding a sexual abuse
investigation and allegations by an alleged victim, BW,
Age 13 years, allegedly perpetrated by the above named
Defendant Dan Rinehart.
4
BW known to Officer Stone to have been reliable in
a past investigation providing information that led to a
conviction, also described in detail a marijuana growing
operation operated at the Defendant's residence in and on
the property above described. Specifically, BW described
the location in an upstairs room of approximately 15 to
20 5' tall marijuana plants, books on growing marijuana
. . . and grow lights in said room. She described in
detail how Dan Rinehart drys [sic] the marijuana grown in
this room for his own use. BW also described the
location of the room and how it is concealed behind bunk
beds in a false wall upstairs in a small bedroom. . . .
Thereafter, Officer Dusterhoff verified that Tom Ernst
owned property in the Montana Retreat Subdivision and
that he had moved to California, as described by his
informant BW after residing in the property adjacent to
Rinehart.
BW indicated she has been in the room where marijua-
na is cultivated and grown in the fall of 1991 and that
she had recently, in May of 1992, seen and observed this
grow operation as described above.
BW also described how Rinehart transports marijuana
to Flathead County to a residence for resale.
Officer Dusterhoff, your affiant, has also observed
the residence of Dan Rinehart and it conforms, specifi-
cally, to the description given him by BW in that it is
a two story structure with ample room in the second story
for the grow operation described by BW and observed by
BW.
The State does not contest the District Court's decision to
excise two statements from the application. The defendants,
however, contend that the District Court should have excised even
more statements from the application than it did.
The issue of whether the District Court erred in refusing to
excise additional statements from the search warrant application is
one which the defendants should have brought up on a cross-appeal.
5
Defendants did not file such a cross-appeal in this matter. Thus,
we refuse to consider this issue.
An application for a search warrant must state facts suffi-
cient to show probable cause for issuance of the warrant. Section
46-5-221, MCA. The probable cause requirement for issuance of a
search warrant is constitutional, as well as statutory.
The Fourth Amendment to the United States Constitution
and Article II, Section 11 of the Montana State Constitu-
tion both protect a person's right to be free from
unlawful searches and seizures by requiring the existence
of probable cause prior to the issuance of a search
warrant.
&iztev.wakton (1989), 236 Mont. 218, 221, 768 P.2d 1387, 1389.
"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 %wtiv.Gates (1983), 462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527." Statev.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 WeracityVl 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.
Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548; seeState
v. O’NeiD (1984), 208 Mont. 386, 394, 679 P.2d 760, 764. The
veracity, reliability and basis of knowledge of informants remain
highly relevant factors in determining probable cause under the
6
totality of the circumstances test. Statev.Seaman (1989), 236 Mont.
4 6 6 , 4 7 2 , 771 P.2d 950, 953.
A determination of probable cause does not require facts
sufficient to make a prima facie showing of criminal activity.
Rather, the issuing magistrate must only determine that there is a
probability of criminal activity. O’Nd, 679 P.2d at 764; Skzkv.
Sundberg (1988), 235 Mont. 115, 119, 765 P.2d 736, 741.
In dealing with probable cause . . . , as the very name
implies, we deal with probabilities. These are not
technical: they are the factual and practical consider-
ations of everyday life on which reasonable and prudent
men, not legal technicians, act.
Brinegarv. UnitedStates (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310,
93 L.Ed 1879, 1890, reh'g. denied 338 U.S. 839; see S&berg, 765 P.2d
at 739-40.
The duty of a reviewing court is simply to ensure that the
magistrate or lower court had a substantial basis for concluding
that probable cause to issue the search warrant existed. ClDWdtT,
810 P.2d at 302. This function does not constitute a denovo review
of the magistrate's determination. Statev.Bakfwin (1990), 242 Mont.
176, 183, 789 P.2d 1215, 1220.
An affidavit supporting a search warrant is to be interpreted
by the magistrate and examined by the reviewing court in a common
sense, realistic fashion and without a grudging or negative
attitude that will tend to discourage police officers from seeking
7
warrants. O’NeiR, 679 P.2d at 764. Reviewing courts should avoid
hypertechnical interpretations of warrant applications and, in
doubtful or marginal cases, resolve the issue with the preference
for warrants in mind. O’NeiU, 679 P.2d at 764.
Amagistrate's determination that probable cause exists should
be paid great deference by reviewing courts and every reasonable
inference possible should be drawn to support that determination.
Sundberg, 765 P.2d at 741; Statev.Rydberg(1989), 239 Mont. 70, 73, 778
P.2d 902, 904. If a magistrate issues a search warrant after
subjecting the application to the totality of the circumstances
test, a reviewing court must presume that decision to be correct.
&rldwin, 789 P.2d at 1220; Sfzztev.Dakim (1990), 245 Mont. 158, 162,
799 P.2d 1070, 1072.
Probable cause must be determined solely from the information
contained within the four corners of the search warrant applica-
tion. f%a~v.~orn (1982), 196 Mont. 330, 341, 641 P.2d 417, 423;
O’NeiR, 679 P.2d at 763-64.
This case is unusual in that the judge who concluded the
application lacked probable cause is the same judge who originally
issued the search warrant. This circumstance, however, should not
alter the general law on reviewing determinations of probable cause
to issue search warrants as stated above.
The District Court, in determining that the application lacked
probable cause, found that the Crimestoppers' tip had little or no
8
value in the probable cause determination and that B.W.'s reliabil-
ity as an informant was not sufficiently detailed.
The anonymous Crimestoppers' tip, by itself, is not adequate
to support probable cause without further investigation to verify
or corroborate the information contained in the tip. stalk v. vunf?y
(1992) I 252 Mont. 489, 493, 830 P.2d 1255, 1257. This does not
mean, however, that the anonymous tip has absolutely no probative
value in the probable cause determination. Factors which have
little probative value on their own can still provide a basis for
a determination of substantial evidence to conclude probable cause
existed to issue a search warrant when such factors are considered
in combination with other information under the totality of the
circumstances test. Statev.Hokfke (Mont. 1993), _ P.2d -, mm.,..-,
50 St.Rep. 1063, 1065.
Crimestoppers' tips can provide some corroboration and
indicate the veracity of other information provided. Rvdhergr 778
P.2d at 904.
We conclude that the Crimestoppers I tip should be considered
under the totality of the circumstances test.
Even without the Crimestoppers ' tip, however, we find that the
application still provides a substantial basis to conclude probable
cause existed to issue the search warrant.
The District Court held that the search warrant application
did not adequately relate how B.W. was known to be a reliable
9
informant. Deputy Dusterhoff, in his affidavit, stated "SW known
to Officer Stone to have been reliable in a past investigation
providing information that led to a conviction . . . .I@ We have
previously upheld search warrants where the only information in the
application relating to the reliability of the informant was a
statement by an officer that the informant had been reliable in the
past. .%?e.g., .%U?v. Campbell (1992), 254 Mont. 425, 838 P.2d 427;
State v. Hedickson (1985) , 217 Mont. 1, 701 P.2d 1368: Wizkton, 768 P.2d
1387; seaman, 771 P.2d 950. We do not require more.
The defendants also argue that an officer applying for a
search warrant must have personal knowledge of an informant's
reliability. We disagree.
An officer may rely on information obtained from other law
enforcement officers in an affidavit supporting an application for
a search warrant. Seaman, 771 P.2d at 954. In Seaman, we upheld
a search warrant where the affidavit recited that the informant had
provided reliable information to law enforcement officials in the
past. We did not require the officer swearing to the information
in the application to be the officer who personally knew of the
informant's reliability. Thus, we conclude that the application
adequately addressed the reliability of B.W. as an informant.
The defendants also argue that Deputy Dusterhoff did not
conduct sufficient investigation to corroborate the information
received from B.W. Corroboration of an informant's information
10
through other sources is necessary when the information is hearsay
or the informant is anonymous. &n&r, 810 P.2d at 302; Sta&v.Hiwk
(1992) I 255 Mont. 2, 5, 839 P.2d 1274, 1276. In the instant case,
the informant was not anonymous nor was the information hearsay.
B.W.'s information was based on her personal observation of
marijuana plants and items for growing marijuana in Rinehart's
home. An informant's personal observation of criminal activity
does not constitute hearsay evidence. It is first-hand evidence.
Sundbq, 765 P.2d at 740. In addition,
[w]e have previously held that information of a criminal
activity known from observation by a previously reliable
informant . . . is sufficient to establish the probabili-
ty of criminal activity without outside investigation and
verification of the reported information.
W&n, 768 P.2d at 1390 (emphasis added). This is precisely the
situation presented here. B.W. is an informant who has proven
reliable in the past and her information was based on personal
observation. This combination is enough to make B.W.'s information
sufficient to establish probable cause to issue a search warrant.
Finally, defendants contend that the application lacked
probable cause because the information it contained was stale. The
application for the search warrant states that "BW indicated she
has been in the room where marijuana is cultivated and grown in the
fall of 1991 and that she had recently, in May of 1992, seen and
observed this grow operation as described above." Then Glacier
County Sheriff's Office received the report of the Crimestoppers'
11
tip in the first week of June 1992, but there is no indication in
the application of when the tip was originally telephoned in to the
BIA.
"[A] determination of staleness in any given case depends
largely on the nature of the property and activity in issue."
Wakton, 768 P.2d at 1390.
The issue of staleness cannot be resolved by a
mechanical reference to the number of days between the
facts relied upon in the affidavit and the time the
warrant is issued. Rather, as the court stated in
Andresenv.Statt? (Md.App.1975), 24 Md.App. 128, 331 A.2d 78
affrd sub.nomAndresen V.hfq&nd (1976), 427 U.S. 463, 96
S.Ct. 2737, 49 L.Ed.2d 627:
"The likelihood that the evidence sought is still in
place is a function not simply of watch and calendar but
of variables that do not punch the clock: the character
of the crime (chance encounter in the night or regenerat-
ing conspiracy?), of the thing to be seized (perishable
and easily transferable or of enduring utility to its
holder?), of the place to be searched (mere criminal
forum of convenience or secure operational base?), etc.
The observation of a half-smoked marijuana cigarette in
an ashtray at a cocktail party may well be stale the day
after the cleaning lady has been in; the observation of
the burial of a corpse in a cellar may well not be stale
three decades later. The hare and the tortoise do not
disappear at the same rate of speed."
Stutev.pierre (1984), 208 Mont. 430, 436-37, 678 P.2d 650, 654.
The Crimestoppers' tip and B.W.'s observations in the fall of
1991 might well be stale when considered individually. When a
criminal activity is continuing in nature, however, more time may
elapse between the observation of the activity and the application
for the search warrant without negating probable cause. WdStOn,
12
768 P.2d at 1390. When these two tips are combined with the more
current observation by B.W. in May of 1992, only two months before
the search warrant issued, the earlier tips carry greater weight in
the probable cause determination. WaIstour, 768 P.2d at 1391;
Campbell, 838 P.2d at 429.
Considering the continuous nature of a marijuana growing
operation, the information provided in the application for the
search warrant was not too stale to prohibit a determination of
probable cause under the totality of the circumstances.
The application provided a substantial basis for the probabil-
ity that criminal activity was occurring on Rinehart's property.
We hold that the District Court erred in determining that the
application for the search warrant did not set forth sufficient
facts to establish probable cause.
Reversed and remanded.
13
We concur:
Justice James C. N e
14
December 2, 1993
CERTIFICATE OF SER:VICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Hon. Joseph P. Mazurek, Attorney General
Michael Wellenstein, Assistant
Justice Bldg.
Helena, MT 59620
James C. Nelson, County Attorney
Larry D. Epstein, Deputy
P.O. Box 428
Cut Bank, MT 59427
James A. Johnson
Attorney at Law
P.O. Box 731
Shelby, MT 59474
Robert J. Yunck
Attorney at Law
501 E. Main St.
Cut Bank, MT 59427
ED SMITH
CLERK OF THE SUPREME COURT
STATEj,OF MONTANA