NO. 92-481
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
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ROBERT L. HOLSTINE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stuart R. Whitehair, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Helena,
Montana; A. Michael Salvagni, County Attorney, Marty
Lambert, Deputy, Bozeman, Montana
Submitted on Briefs: April 16, 1993
Decided: September 1 3 . 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Robert L. Holstine (defendant) appeals his conviction of
felony possession of dangerous drugs by the District Court of the
Eighteenth Judicial District, Gallatin County. We affirm.
On February 14, 1991, Detective Mark Tymrak of the Bozeman
City Police Department, was approached by a confidential informant
who offered to provide information on a marijuana grow operation in
the Big Sky area near Gallatin Gateway, Montana. The confidential
informant described in detail the location of the residence just
north of Big Sky where a man known as "Cutter Bob" lived. The
confidential informant also gave a physical description of the
residence, the person involved in the operation and his vehicle,
and the marijuana grow operation itself. Further, the informant
provided details of the grow operation, including the approximate
nl~mbern f plants and info~.ationthat thcrs uss at least o i grow
ie
light and a fan.
Detective Tymrak contacted Lieutenant Pronovost of the
Gallatin County Sheriff's Department and two officers of the
Gallatin County Drug Task Force, Detectives Lenard and Sanem.
Detective Tymrak and another detective traveled to Big Sky later
that afternoon to corroborate the information given by the
confidential informant. After verifying that the residence and its
location matched the description given by the confidential
informant, they met with local deputies assigned to the Big Sky
area, who helped the detectives determine that "Cutter Bob" was the
defendant, Robert L, Holstine, and that defendant had been charged
in 1989 with possession of drug paraphernalia.
At approximately 11:30 p.m., Detectives Lenard, Sanem and
Pronovost of the Gallatin County Drug Task Force drove back to the
Gallatin Gateway area. Detective Lenard parked his car on Highway
191 in a spot visible from defendant's residence and left the
emergency lights flashing. Wearing ski clothing and posing as a
stranded motorist, Detective Lenard approached the residence while
the other two detectives waited out of sight in another vehicle.
When defendant answered the door, Lenard told him that his car
had broken down and asked the defendant if he could use his phone.
The defendant led Lenard through an entryway and into a bedroom
area in the main part of the residence, which consisted of a mobile
home with a full-length addition. Lenard testified that he
observed shop tools and cut antlers in the entrance area and
detected the odor of marijuana smoke in the air. He observed no
marijuana grow operation. Lenard testified that he was in the
residence for only about forty-five seconds, during which time he
used the phone and called his office, leaving a message on his
answering machine.
Lenard left the residence and walked back to his car. He
removed his skis from the top of his car and again approached the
residence. He knocked on the door again, this time asking the
defendant if he could leave his skis inside the residence. Lenard
told defendant that he planned to leave his car on the side of the
highway and feared the skis would be stolen. This time defendant
did not admit Lenard into his home. Instead, he advised Lenard
that he would be gone the next day, but that Lenard could leave the
skis propped against the west side of the residence which was out
of view from passersby. Lenard thanked the defendant, shook his
hand and told him his name was Kevin Adams.
Lenard then walked around to the west side of the residence
and propped his skis against the residence while he looked for
additional information. The confidential informant had stated that
the grow operation was located in the southwest corner. In that
corner, Lenard observed a window covered with what appeared to be
wood or insulated material and sealed with duct tape. Lenard
testified that he could smell growing marijuana plants "really
strong" in an area near the window as he walked past it.
Lenard then left with the other two detectives, returned to
Bozeman and prepared paperwork to procure a search warrant. After
obtaining the search warrant the next morning, Lenard and Tymrak
returned to the defendant's residence with the search warrant. As
a result of the search, the detectives found and seized horn and
antler pipes found throughout the residence, a "baggyw containing
marijuana that was found on a table, fourteen marijuana plants, and
a hospital bill from the bedroom area addressed to Robert L.
Holstine to show that defendant was living at the address and
receiving mail there.
The marijuana plants were dried and then submitted to the
Montana State Crime Lab, which confirmed that the substance was
159.5 grams of marijuana. Defendant moved to suppress the evidence
obtained as a result of an illegal search. After a suppression
hearing and a bench trial, the District Court denied the motion to
suppress and found the defendant guilty of possessing more than 6 0
grams of marijuana, a felony, under 5 45-9-102, MCA, and not guilty
of manufacture of drug paraphernalia, a misdemeanor. This appeal
followed.
Although the defendant argued extensively that the evidence
found should have been suppressed because it was obtained by a
ruse, we decline to address that issue. There was a total absence
of relevant evidence gained by Detective Lenardts ruse entry into
defendant's residence. Because the officers did not rely on any
information gained by the ruse entry to support probable cause to
obtain the search warrant, there was no evidence which could be
classed as gained by deceptive entry. The sole issue for our
review, therefore, is whether there was sufficient probable cause
for a search warrant to issue.
This Court has adopted the ittotalityof the circumstances"
test from Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317,
7 6 L.Ed.2d 527, for assessing the issue of probable cause for the
issuance of a search warrant. See State v. Campbell (1992), 254
Mont. 4 2 5 , 427, 838 P.2d 427, 429. Our function is not to review
de novo the magistrate's determination that probable cause existed
to issue a search warrant. State v. Baldwin (1990), 242 Mont. 176,
183, 789 P.2d 1215, 1220. Rather, our duty is to "ensure that the
magistrate had a 'substantial basis for . . . conclud[ing] that
probable cause existed." m,462 U.S. at 238-39, 103 S.Ct. at
2332, 76 L.Ed.2d at 548. Moreover, as a reviewing court, we
should attach great deference to the magistrate's determination of
probable cause. Camwbell, 838 P.2d at 429.
The information provided to Detective Tymrak by the
confidential informant was information the informant had received
by firsthand observation. The informant provided detailed
information on the defendant's marijuana grow operation. The
informant explained the location of the residence, the layout of
the mobile home and its built-on addition and the location within
the mobile home where the marijuana was growing. The informant
also told Tymrak that he had observed the marijuana plants growing
in a room in the southwest corner of the residence. Although the
informant knew the defendant only as "Cutter Bob," the informant
gave detailed descriptions of the defendant and the defendant's
vehicle. Further, the affidavit signed by Detective Lenard stated
that the confidential informant had provided law enforcement with
reliable information in the past. In Gates, the United States
Supreme Court commented on an informant's personal observation,
stating that "his explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed
firsthand, entitled his tip to greater weight than might otherwise
be the case." Gates, 462 U.S. at 234, 103 S.Ct. at 2330, 76
L.Ed.2d at 545.
Although a reliable confidential informant's information is
entitled to greater weight under the "totality of the
circumstances" test than an informant who has not demonstrated
reliability, such information alone may be insufficient to
establish probable cause. The "totality of the circumstances" test
from Gates provides:
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 knowledgei 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.
"The totality of the circumstances test is fact specific."
State v. Valley (1992), 252 Mont. 489, 830 P,2d 1255, 1257 (quoting
State v. Olson (Minn. 1989), 436 N.W.2d 92). The factors
supporting probable cause must not be stale and they must indicate
that the contraband or evidence would presently be at the place
searched. In Valley, we stated that 'f[c]ommon sense dictates
further investigation" to verify or corroborate the tips received
from informants. Valley, 830 P.2d at 1257.
The detectives here acted upon the information provided by the
confidential informant the same day they received the tip, driving
to the Big Sky area to verify that the description of the location
and physical characteristics of the residence were as described by
the informant. However, this Court has previously stated that
facts of a description and location of property, while easily
confirmable by a driveby, can hardly be regarded as probative of
the probability of the presence of contraband therein. Valley, 830
Factors which are of little probative value alone, however,
when taken together under the Gates "totality of the circumstances"
test, provide the basis for a determination of substantial evidence
to conclude probable cause existed to issue the search warrant.
Carnobell, 838 P.2d at 429. In this case the detectives next
contacted other law enforcement officers who regularly worked in
the Big Sky area and determined that "Cutter Bobw was defendant
Robert L. Holstine. They further determined that Holstine had
previously been charged with possession of drug paraphernalia.
Although these were all above-board means of verification, the
officers did not believe they had obtained sufficient information
to obtain a search warrant. Lenard then posed as a skier to obtain
entrance to defendant's residence to use the telephone. This ruse
entry into the residence provided no information about the
marijuana grow operation.
When Lenard walked behind the mobile home for the purpose of
propping his skis against it, he observed that a window in the
southwest corner of the residence was covered over and emitting no
light, although numerous other windows were emitting light. Lenard
testified that from his experience and training, he knew that it
was common practice for windows to be covered to conceal the light
sources for growing marijuana. Also behind the mobile home, Lenard
smelled a llstrong,pungent odor" that he identified from his
experience as the odor of growing marijuana. At the time the
search was conducted, it was discovered that the odor was coming
from a ceiling vent in the room where the marijuana grow operation
was located.
An application for a search warrant must contain a showing of
facts sufficient to establish that there is probable cause to
believe that contraband or evidence is to be found at the place to
he searched at the time the warrant is issued. Valley, 830 P.2d at
1257. We conclude that the information Lenard obtained by walking
to the southwest area of the residence, along with the information
provided by the confidential informant and verified by law
enforcement, was sufficient to establish probable cause to obtain
a search warrant in this case.
Defendant also argues that Detective Lenard's affidavit
supporting issuance of the search warrant contains incorrect facts
which, according to this Court's prior decisions, cannot be used to
establish probable cause. See, e 4 ,State v. Wilson (1992), 254
..
Mont. 317, 837 P.2d 1346; Valley, 830 P.2d 1255; and State v.
Nanoff (1972), 160 Mont. 344, 502 P.2d 1138. Specifically,
defendant contends that Lenard could not actually smell any growing
marijuana plants, that he "just knew they existed," and that he
fabricated the smell of the plants in order to obtain the search
warrant. Defendant contends that Lenard changed his story when it
was later determined that the odor was in fact emitting from a
ceiling vent, not the sealed-off window.
Defendant did not make the argument that the application for
the search warrant contained false information at the time of the
suppression hearing as required by 3 46-13-302(1), MCA. He raised
this issue for the first time in a supplemental brief filed on July
35, 1991, two weeks after the trial and hearing. Defendant's
primary argument at the concurrent suppression hearing and trial
was that consent to enter the residence was coerced under the guise
of deception. Defendant bases his contention that Lenard
fabricated information to establish probable cause for a warrant on
Lenard's statements that he could smell the odor of growing
marijuana outside the residence.
Defendant places great emphasis on Lenard not knowing that the
window was sealed off and that the odor actually came from a
ceiling vent and not from the window. Lenard's affidavit does not
state that Lenard believed the odor of growing plants was coming
from the window. He testified that he did not stop to sniff and
smell--that he walked to the area, propped his skis against the
residence and then left the premises. Detective Lenard stated in
his investigative report dated February 15, 1991:
I walked underneath the window and could detect an odor in
that area. The odor was very pungent. I recognized the odor
from past search warrant executions as the odor of growing
marijuana plants.
In his affidavit in support of the application for a search
warrant, also dated February 15, 1991, Lenard stated:
One window located in the southwest corner appeared to be
covered over. Also a strong, pungent odor was present. From
experience your affiant identified the odor as growing
marijuana .
Lenard testified at trial as follows:
Q: And did you sense or observe any such information [to
further substantiate the information given by the confidential
informant]?
A: Yes. The information from the confidential informant
stated that the grow was in the southwest. corner of the
trailer. As I walked by that area, I observed a window that
was covered over with what appeared to be wood or insulated
material. As I walked past the area -- this was in February
and there was waist-deep snow everywhere around the trailer.
Everything was real icy and cold. I could detect an odor of
growing plants, like a greenhouse, same sort of smell. It was
real strong in one area. The one area was the area where the
confidential informant said the grow was.
Q: How long would you say you spent then behind that trailer,
or in that area there by the trailer where you left your skis?
A: I kept moving the whole time. I didn't stop and sniff or
stare around or look around. I walked and put the skis back
and I walked back through. As I walked past the window the
first time, I could detect the odor. As I walked back again,
it was the same area. It wasn't spread out through the whole
side of the trailer, just the one area that was contained.
Q: And it was your testimony that you smelled growing
marijuana plants through the window along the side of the
trailer?
A: Yes.
A: I think they call it construction board. It's a sort of
insulated board you use for cork board sometimes. It was
sealed with duct tape.
Q: Yet you smelled growing marijuana plants through that
sealed window?
A: When we did the search warrant, the reason I could smell
the growing marijuana was that there was a large vent in the
ceiling of the trailer. Vents are frequently used in grow
operations to vent the heat so the plants don't overheat. The
area where I could smell the marijuana was directly beneath
the vent.
Q: -- yet outside at night in winter time, through a sealed
window, your testimony is that you could smell the very same
plants that you couldn't smell from the inside?
A: No. I think my testimony was that I could smell the
marijuana through the vent that was venting the room, not
through the sealed window. And possibly the reason I could
not detect the smell of the growing marijuana in the trailer
was that the vent was venting the smell outside.
From a careful review of this and other testimony and documents in
the record, we conclude there is nothing therein to support the
defendant's claim that Detective Lenard fabricated a story about
the odor of growing marijuana plants near the southwest corner of
the defendant's residence in order to get a search warrant. We
conclude that the District Court did not err in finding that
"Lenard noted a covered window and detect[ed] the odor of growing
majijuana [sic] coming from a vent."
We hold there was a substantial basis for the District Court
to conclude that probable cause existed for the issuance of the
warrant to search defendant's residence.
Affirmed.
12
Justice William E. Hunt, Sr., dissenting.
I dissent. I agree with defendant's argument that the
evidence should have been suppressed because it was obtained by a
ruse. As the majority points out, the deputy, by a pretense sf
needing help, which was given to him by defendant, determined after
being in the house and outside of the house, that marijuana was
being grown on the premises. The search warrant was not issued
until after the deputy and two detectives returned to Bozeman and
prepared the paperwork to obtain a search warrant. The majority
skips over the episode and hangs their ruling on the fact that
there was enough evidence for the warrant anyway. This is a
tainted search that took advantage of a willingness to help a
stranded motorist which supplied the information for law
enforcement officials to obtain a warrant.
I would grant the motion to suppress the evidence.
September 13: 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Stuart R. Whitehair
Attorney at Law
P.O. Box 6493
Bozeman. MT 59715
Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena. MT 59620
A. Michael Salvagni, County Attorney
Marty Lambert, Deputy
615 S. 15th
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA