NO. 94-013
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DIANE MARIE FELAND,
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Johnson; Johnson & Hunt,
Shelby, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg Coughlin, Assistant Attorney General,
Helena, Montana
Merle J. Raph, Toole County Attorney,
Shelby, Montana
Submitted on Briefs: May 19, 1994
Decided: October 13, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Diane Feland was convicted on guilty pleas to two drug-related
charges in the Ninth Judicial District Court, Toole County. She
appeals the District Court's denial of her motion to suppress all
evidence resulting from an allegedly invalid search warrant, urging
that the court erred in concluding that she was not entitled to an
evidentiary hearing regarding the search warrant. We affirm.
In November, 1992, Toole County Deputy Sheriff Glenn Kurkowski
(Kurkowski) met with a confidential informant who told Kurkowski he
had recently visited the home of Diane Feland (Feland). The
informant stated that, while at Feland's home, he was shown a
plastic bag purportedly containing marijuana, a dragon-shaped pipe,
rolling papers, and other items of drug paraphernalia stored in a
lamp stand located in the living room. The informant also
described a marijuana plant growing in the living room and said he
had been told another plant was growing in the first-floor bedroom.
Finally, the informant said that Feland's daughter told him Feland
recently had purchased $300 worth of marijuana.
Based on this information, Kurkowski applied for and received
a search warrant. Containers of marijuana, items of drug
paraphernalia, and a grow light were found during the search of
Feland's home.
Based on the items seized during the search and Feland's
admissions that she had drugs and paraphernalia on the premises and
smoked the marijuana, the Toole County Attorney moved for leave to
file an information. The District Court granted the motion and the
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County Attorney filed an information charging Feland with felony
possession of dangerous drugs and misdemeanor possession of drug
paraphernalia. Feland pled not guilty to both charges.
Feland then challenged the validity of the search warrant and
moved to suppress all evidence and admissions obtained via that
warrant. She asserted that certain of the informant's statements
contained in Kurkowskits application for the search warrant
(warrant application) were knowingly or intentionally false or made
with reckless disregard for the truth. She argued that if the
false material were excised from the application, insufficient
information remained to establish probable cause for the issuance
of the search warrant. The District Court denied Feland's motion
to suppress without holding an evidentiary hearing.
Feland subsequently entered, and the court accepted, guilty
pleas to the offenses charged. The District Court imposed a two-
year deferred sentence on the felony offense and a six-month
suspended sentence on the misdemeanor offense. The court's
judgment authorizes Feland to appeal the denial of her motion to
suppress pursuant to § 46-12-204(3), MCA. Feland appeals.
In denying Feland's motion, the District Court concluded that
she failed to make a substantial preliminary showing that false
information was contained in the warrant application and, thus,
that she was not entitled to an evidentiary hearing on the veracity
of the statements in the warrant application. Feland contends that
she made the showing necessary to entitle her to an evidentiary
hearing. We review a district court's denial of an evidentiary
3
hearing for a clear abuse of discretion. State v. Wi lson ( 1985),
218 Mont. 359, 363, 708 P.2d 270, 272.
The Fourth Amendment to the United States Constitution
specifically provides that "no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation . . . ." The
assumption underlying the issuance of a search warrant is that the
factual showing establishing probable cause must be lt'truthful' in
the sense that the information put forth [in the warrant
application] is believed or appropriately accepted by the affiant
as true." Franks v. Delaware (1978), 438 U.S. 154, 165, 98 S.Ct.
2674, 2681, 57 L.Ed.2d 667, 678.
In Franks, the Supreme Court adopted a procedure for
challenging the truthfulness of factual statements contained in an
application for a search warrant. An evidentiary hearing on such
a challenge is not required unless the defendant first makes a
"substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant.in the warrant [application]," and that the
false statement was necessary to a finding of probable cause.
Franks, 438 U.S. at 155-56.
We adopted the Franks procedure for challenging the validity
of a warrant affidavit in State v. Sykes (1983), 194 Mont. 14, 20,
663 P.2d 691, 695. A substantial preliminary showing of a
deliberate falsehood or reckless disregard for the truth requires
more than a conclusory statement. State v. Mosley (1993), 260
Mont. 109, 116, 860 P.2d 69, 73 (citation omitted). The defendant
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must make an offer of proof containing "affidavits, sworn
statements or other reliable witness statements which tend to prove
that false statements in the application were deliberately made."
Mosley, 860 P.2d at 73 (citation omitted). We emphasized in
Mosley, as had the Supreme Court in Franks, that "[i]nformation
contained in a warrant application will be deemed truthful when the
information put forth is believed or appropriately accepted @y
affiant." Moslev, 860 P.2d at 73 (citation omitted) (emphasis
added).
Feland challenged the veracity of the informant's statements
set forth by Kurkowski in the warrant application in a brief
submitted to the District Court; no affidavits or sworn statements
were appended. With regard to the informant's statements
describing marijuana and drug paraphernalia stored in a lamp stand,
a marijuana plant growing in the living room, and an alleged
discussion with her daughter about a marijuana purchase, she
asserts that she or a member of her family is prepared to deny the
truth of each of those statements. On that basis, Feland argues
that the brief constitutes a sufficient preliminary showing to
entitle her to an evidentiary hearing under m. We disagree.
Feland's challenge to the informant's statements is similar to
the general challenge presented by the defendant in Svkes. r e ,
T h e
the defendant produced an affidavit by his wife stating that she
was at home and that no stranger or person "likely to have seen the
marijuana" was in the house the day preceding the search. Sykes,
663 P.2d at 692-93. We observed that although the affidavit
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alleged that no strangers were present, it did not preclude an
acquaintance who saw the marijuana and reported it to the police.
Svkes, 663 P.2d at 695. We concluded that the defendant's
affidavit was insufficient to make a substantial preliminary
showing that the warrant affidavit contained false information.
Svkes, 663 P.2d at 695-96.
Here, Feland's challenge relates to the alleged falsity of the
confidential informant's statements and contains no affidavits,
sworn witness testimony, or other reliable witness testimony. She
relies on unsupported, general denials of the informant's
statements. As in Svkes, we conclude that Feland's challenge does
not constitute the substantial preliminary showing of falsity or
reckless disregard for the truth required to entitle her to an
evidentiary hearing.
More importantly, however, Feland's focus on the alleged
falsity of the informant's statements does not address the primary
factor required for a substantial preliminary showing under Franks
and Moslev, which is that the affiant--deliberately or with
reckless disregard for the truth--included false statements in the
warrant application. Feland did not allege, much less make any
showing in support of such an allegation, that a single one of
Kurkowski's statements was deliberately false or made by him with
reckless disregard for the truth. We hold, therefore, that the
District Court did not abuse its discretion in denying Feland an
evidentiary hearing on the veracity of the information contained in
the warrant application and in denying her motion to suppress.
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Affirmed.
We concur*
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Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority's opinion. However,
I do not agree with all that is said by the majority in that
opinion.
Specifically, for the reasons stated in my dissent to Statev.
I%S@ (1993), 260 Mont. 109, 860 P.2d 69, I would not mechanically
follow the U.S. Supreme Court's decision in Franksv.Delaware (1978),
438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667.
In the determination of what information should be excised
from an application for a search warrant before considering whether
there was probable cause to issue the search warrant, I would
excise all false information. I fail to see why a search is
reasonable when based totally on misrepresentations simply because
the person whose privacy has been invaded cannot prove a dishonest
intent by the person who sought the warrant. As stated by Judge
Frankel in UnitedStatesv. Halsey (S.D.N.Y. 1966), 257 F. Supp. 1002,
1005, affd, Docket No. 31369 (CA2, June 12, 1967) (unreported), and
quoted with approval in Franks:
[W]hen the Fourth Amendment demands a factual showing
sufficient to comprise 'probable cause,' the obvious
assumption is that there will be a truthful showing.
Franks, 438 U.S. at 164-65 (alteration in original). The Court went
on to state that
[t]his does not mean "truthful" in the sense that every
fact recited in the warrant affidavit is necessarily
correct, for probable cause may be founded upon hearsay
and upon information received from informants, as well as
upon information within the affiant's own knowledge that
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sometimes must be garnered hastily. But surely it is to
be "truthful" in the sense that the information put
forward is believed or appropriately accepted by the
affiant as true.
Frank-s, 438 U.S. at 165.
Based on Montanans' independent state right to be free from
unreasonable searches and seizures provided for in Article II,
Section 11, of the Montana Constitution, I would adopt the
following variation of the rule established in Franks for
challenging the veracity of a sworn statement used by police to
secure a search warrant: When a defendant makes a substantial
preliminary showing that false information was included in the
application or affidavit offered in support of a search warrant, a
hearing must be held at the defendant's request. At that hearing,
the defendant bears the burden of proving by a preponderance of the
evidence that the information offered is untrue. The untruthful
information must be excised from the application, and a
determination must be made whether there is sufficient probable
cause without the excised information. If not, the search warrant
must be voided and the fruits of the search excluded.
I agree with the Franks decision, and with this Court's
decision in Mosley, that to mandate an evidentiary hearing, the
challenger's attack must be based on more than conclusory
statements made by counsel, but instead must take the form of an
affidavit or some other reliable form of proof.
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I also agree with this Court's conclusion in Statev.Sykes (1983),
194 Mont. 14, 20, 663 P.2d 691, 695, that:
Where the affidavits contain factual inaccuracies that do
not go to the integrity of the affidavit because they are
of only peripheral relevance to the showing of probable
cause, the search warrant remains valid.
I concur with the majority's decision to affirm the District
Court for two reasons. First, defendant's attack on the State's
search warrant in this case was not supported by affidavits or
other reliable information, but merely by counsel's conclusory
statements. Second, even if all the statements and the application
were excised, except the statement that the State's informant had
seen a plastic bag of marijuana being stored in a lamp stand in the
living room, there was still sufficient probable cause to issue the
search warrant. Defendant disputes that the plastic bag of
marijuana'was stored in a lamp stand. She contends it was actually
stored in an end table. However, to the extent that the
distinction between a lamp stand and an end table is a factual
inaccuracy, it did not go to the integrity of the affidavit and was
of peripheral relevance to the showing of probable cause.
Therefore, while I decline to follow lock-step with the U.S.
Supreme Court's erosion of Fourth Amendment rights in Franks, I
concur with the majority's decision to affirm the District Court.
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October 13, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
James A. Johnson
JOHNSON & HUNT
P.O. Box 731
Shelby, MT 59474
Merle J. Raph
TOOLE COUNTY ATTORNEY
P. 0. Box 730
Shelby, MT 59474
Hon. Joseph P. Mazurek, Attorney General
Cregg W. Coughlin, Assistant
Justice Building
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA