No. 94-068
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy N. Guth, Public Defender's Office, Libby,
Montana
For Respondent:
Hon. Joseph Mazurek, Attorney General, Barbara
Harris, Assistant Attorney General; Scott B. Spencer
Lincoln County Attorney, Libby, Montana
Submitted on Briefs: November 23, 1994
Decided: March 7, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Nineteenth Judicial District Court,
Lincoln County, from the denial of the defendant's motions to
disclose the identity of a confidential informant and to suppress
the evidence seized pursuant to the search warrant issued on April
12, 1993. We affirm.
The following are issues on appeal:
I. Did the District Court err in denying the defendant's
motion to require disclosure of the identity of the confidential
informant who provided information set forth in the affidavit in
support of the application for a search warrant?
II. Did the District Court err in denying the defendant's
motion to suppress the evidence seized pursuant to the search
warrant in the search of her home?
FACTUAL AND PROCEDURAL BACKGROUND
In his affidavit and application for a warrant to search the
home of Becky L. Sarbaum (Sarbaum) dated April 12, 1993, Lincoln
County Sheriffs Department Detective Klint H. Gassett (Gassett)
stated that the offense of Criminal Possession with Intent to Sell,
a felony, in violation of § 45-g-103, MCA, had been committed. The
affidavit described the Sarbaum residence and the items believed to
be located on the premises, such as growing marijuana plants and
equipment, packaged marijuana and drug paraphernalia. The
affidavit set forth Gassett's experience and knowledge in drug
investigations and marijuana grow operations.
Gassett went on to state that a confidential informant, known
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to be credible and reliable, had provided him with information
about drug activities at the Sarbaum home. Gassett's affidavit
states that the confidential informant was in the Sarbaum home
approximately four times within the three months preceding his
application. During the course of that time, according to the
confidential informant, Sarbaum had grown some marijuana plants to
maturity and started some new plants. The confidential informant
stated that he had seen about 30 plants of varying sizes in the
basement of the home and under the pumphouse on the property during
different visits. The confidential informant provided this
information from his own observations at the Sarbaum residence.
The affidavit also states that Sarbaum's husband, Blaine,
told the confidential informant that he (Mr. Sarbaum) cloned
marijuana; that the plants were grown for profit; that he (Mr.
Sarbaum) planned to enlarge the growing operation; and when the
most recent plants would be ready for harvest. The affidavit noted
that the confidential informant had informed Gassett that the most
recent plants would be ready for harvest around April 12, 1993, the
time of the application for the search warrant.
In further support of his application, Gassett also provided
further information from two detectives who had been at the Sarbaum
home. Detective Bernall, who is familiar with the odor of growing
marijuana, had been at the home on February 28, 1993, on an
unrelated matter and smelled the odor of growing marijuana in the
residence. Officer Sweet had also been to the residence on two
other unrelated matters. On April 10, 1993, Sweet answered a
possible domestic abuse call at the home and even though us.
Sarbaum was no longer in the home, Mr. Sarbaum would not let the
police officer enter the home. In the fall of 1992, Sweet was at
the residence regarding an injury of one of the Sarbaum children
and Sarbaum was more concerned about getting the officer out of the
home than about the injured child.
The Lincoln County Justice of the Peace issued the search
warrant on the same day that the application was made. During the
search, marijuana, marijuana stems and stalks, grow equipment, drug
paraphernalia and weapons were seized. An information was filed on
April 27, 1993, charging Mr. and Mrs. Sarbaum with criminal
possession with intent to sell, in violation of 5 45-g-103, MCA.
(The charges against defendant's husband, Blaine Sarbaum, were
resolved and are not the subject of this opinion).
On May 21, 1993, the defendant filed a motion and supporting
brief for an order requiring disclosure of the identity of the
confidential informant. On September 24, 1993, the defendant filed
a motion and supporting brief to suppress the evidence seized in
the search of her home. On October 4, 1993, the District Court
denied the defendant's motion to disclose the identity of the
confidential informant. On December 6, 1993, the District Court
issued an order granting the defendant's motion for suppression of
the evidence seized in the search, finding the information which
supported the search warrant to be stale.
On December 9, 1993, the State filed a motion to reconsider
the court's order granting the defendant's motion to suppress based
4
on our recently issued opinion in State v. Rinehart (1993), 262
Mont. 204, 864 P.2d 1219, decided December 2, 1993. The State
asserted in the motion that the "Rinehart/McAtee case stands for
the proposition that information from an informant of known
reliability is sufficient to establish probable cause." In an
order filed January 6, 1994, the District Court reconsidered its
prior decision and denied the defendant's motion to suppress.
On January 13, 1994, the defendant entered an Alford plea and
signed a plea bargain agreement, reserving the right to appeal any
pre-trial motions in the matter. Sarbaum's plea of guilty and the
plea bargain agreement were accepted by the Court on January 26,
1994. On that same day, the court dismissed the charge of criminal
possession with intent to sell, and the State filed an amended
information charging defendant with criminal possession of
dangerous drugs. Sarbaum received a two-year deferred sentence and
on January 31, 1994, she appealed the issues of the court's refusal
to require disclosure of the identity of the confidential informant
and its denial of her motion to suppress.
DISCUSSION
I. Did the District Court err in denying the defendant's
motion to require disclosure of the identity of the confidential
informant who provided information set forth in the affidavit in
support of the application for the search warrant?
The government's privilege to refuse to disclose the identity
of a confidential informant is subject to a balancing test
enunciated in Roviaro v. United States (19571, 353 U.S. 53, 77
S.Ct. 623, 1 L.Ed.2d 639. In that case the United States Supreme
Court stated:
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We believe that no fixed rule with respect to
disclosure is justifiable. The problem is one that calls
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.
Roviaro, 353 U.S. at 62. This Court adopted that test in State v.
Crowder (1991), 248 Mont. 169, 176, 810 P.2d 299, 303.
Furthermore, with respect to the necessity of disclosing the
identity of an informant, Rule 502, M.R.Evid., provides:
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.
(b) Who may claim the privilege. The privilege may be
claimed by an appropriate representative of the public
entity to which the information was furnished.
(c) Exceptions and limitations.
i2i Testimony on relevant issue. If it appears in the
case that an informer may be able to give testimony
relevant to any issue in a criminal case or to a fair
determination of a material issue on the merits in a
civil case to which a public entity is a party, and the
public entity invokes the privilege, the court shall give
the public entity an opportunity to show facts relevant
to determining whether the informer can, in fact, supply
that testimony.
Given the above authority, and based on our review of the
record in the instant case, we conclude that disclosure of the
identity of the confidential informant was properly denied. In
Crowder, we stated that the defendant must show the need for
revealing the informant's identity and that mere speculation or
conjecture that his testimony will be relevant is insufficient to
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require that his identity be revealed. Crowder, 810 P.2d at 304.
In the instant case, the defendant's attorney argued in the
July 27, 1993, hearing, that the confidential informant "may indeed
be an exculpatory witness for [Sarbauml." This is precisely the
sort of mere speculation and conjecture that was discussed in
Crowder and in State v. Babella (1989), 237 Mont. 311, 315, 772
P.2d 875, 878, and which we determined to be an insufficient basis
for requiring disclosure of an informant's identity.
Moreover, the Roviaro balancing test, under these
circumstances, weighs in favor of the nondisclosure of the identity
of the confidential informant. Roviaro, 353 U.S. at 62; Babella,
772 P.2d at 876. The State has a strong interest in protecting the
flow of information regarding the drug trade within Lincoln County.
Roviaro, 353 U.S. at 62; Babella, 772 P.2d at 876. The State has
demonstrated that this flow of information could be impaired
without the probable future services of the confidential informant.
Gassett testified that there was "very much" a risk if the
State disclosed the identity of the informant. Also, in an
affidavit by Gassett before the District Court, he stated that the
confidential informant may be in physical danger if his identity
was disclosed; that disclosure would destroy the government's
ability to use the confidential informant as a future source of
information and that he (Gassett) had reason to believe that the
informant would continue to provide information to the Sheriffs
Department. We conclude that the State, in response to Sarbaum's
request, demonstrated that disclosure of the identity of the
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confidential informant would result in a substantial risk to the
informant and/or his operational effectiveness, which, in turn,
would negatively impact the flow of information about the drug
trade in Lincoln County.
Sarbaum did not demonstrate that her right to prepare a
defense would be impaired by the nondisclosure of the confidential
informant. Roviaro, 353 U.S. at 62; Babella, 772 P.2d at 876. As
stated above, Sarbaum could only speculate that the confidential
informant might provide exculpatory information that would, in some
manner, be relevant to her case. She failed to demonstrate that
the identity of the confidential informant was essential to the
preparation of her defense. Moreover, testimony at a motions
hearing revealed that the defendant and her husband were fairly
certain as to the identity of the confidential informant.
Accordingly, they had only to subpoena the confidential informant
as a witness.
Moreover, she failed to demonstrate under Rule 502,
M.R.Evid., that, as stated above, the confidential informant could
present relevant testimony on a material issue in the case.
This rule [502] allows the government to refuse to
disclose the identity of an informant, subject to certain
exceptions. The exception applicable in this case
provides that if an informant can give testimony relevant
to any issue in a criminal case, and the government
claims the privilege, the trial court must determine if
the defendant's right to prepare his defense will be
impinged by the government's interest in protecting the
flow of information by informants. If the trial court
determines that the defendant's rights will be violated
if the informant is not identified, and the government
refuses to identify the informant, the court must dismiss
the charges against the defendant. Even before this rule
was adopted, Montana followed the same balancing test,
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which was set forth by the United States Supreme Court in
Roviaro v. United States (1959), 353 U.S. 53, 77 S.Ct.
623, 1 L.Ed.2d 639.
State v. Chapman (1984), 209 Mont. 57, 65, 679 P.Zd1210, 1215.
In the instant case, the informant did not testify nor did the
defendant demonstrate that Sarbaum's right to prepare her defense
would be impinged by the government's interest in protecting the
flow of information by the informant. Sarbaum did not show under
the Roviaro balancing test or under Rule 502, M.R.Evid., that the
informant could provide testimony on any relevant issue in the
instant case. Sarbaum provided only speculation and conjecture,
which is insufficient to warrant the disclosure of the identity of
the informant. Crowder, 810 P.2d at 304. The State's interest in
protecting the flow of information by informants does not impinge
upon Sarbaum's right to prepare her defense and accordingly, we
conclude that the District Court correctly determined that the
disclosure of the confidential informant was not mandated.
Sarbaum also argued that she was entitled to disclosure of the
confidential informant because she was "entrapped" by the law
enforcement officers. We conclude, however, that there is no
support in the record for any such claim, and we decline to address
that argument further.
We hold that the District Court did not err in denying the
defendant's motion to disclose the identity of the confidential
informant.
We note that both parties argued the applicability of § 46-15-
324(3), MCA. Section 46-15-324(3), MCA, provides that the
9
existence or identity of an informant who will not be called to
testify is not required if disclosure would result in substantial
risk to the informant or his operational effectiveness and the
failure to disclose will not infringe the constitutional rights of
the accused. Although subsection (3) of the statute was in effect
prior to 1991, the Legislature amended § 46-15-324, MCA, by
deleting subsection (3) during the 1991 session. The Legislature
again amended § 46-15-324, MCA, during the 1993 session by
reinserting subsection (3).
In the instant case, the defendant filed her motion to
disclose the identity of the informant in May of 1993. The 1993
amendment to § 46-15-324, MCA, which reinserted subsection (3) into
the statute was not in effect until October of 1993. Therefore, at
the time the defendant filed her motion for disclosure, the 1991
version of the statute was in effect; this version of the statute
does not contain subsection (3) of § 46-15-324, MCA. Both parties
therefore, argue the applicability of a statute which was not in
effect at the time of the defendant's motion. We remind counsel
that it is their obligation to ensure that the statutes they cite
are in effect and are, thus, authority for the legal arguments
being made.
II. Did the District Court err in denying the defendant's
motion to suppress the evidence seized pursuant to the search
warrant in the search of her home?
The defendant also challenges the District Court's denial of
her motion to suppress evidence seized during the execution of the
search'warrant. She contends that much of the information supplied
10
to the magistrate by the State was stale; that the State failed to
corroborate the confidential informant's information; and that, as
a result, the affidavit and application for the search warrant
failed to establish probable cause to issue the warrant.
The State counters that the defendant's claim that the
information in the search warrant was stale is not supported by the
facts and case law. The State also argues that the confidential
informant was reliable and credible and that information supplied
by the police officers, in addit.ion tom that supplied by the
confidential informant, demonstrated sufficient probable cause for
a warrant to issue
It is well established that the "totality of the
circumstances" test is used to determine whether probable
cause supports the issuance of a search warrant. We
review the circumstances set forth in the affidavit and
consider whether the issuing magistrate had a substantial
basis for concluding that probable cause existed.
Probable cause is established if there is a fair
probability that incriminating items will be found at the
place described in the search warrant. (Citations
omitted.)
State v. Hulbert (1994), 265 Mont. 317, 321, 877 P.2d 25, 27.
Here, the search warrant described the premises to be searched
in detail. It states that the affiant, Detective Gassett, is
trained and experienced in the detection of illegal drugs and
provides background information to support his statement that he is
knowledgeable about illegal drugs and marijuana grow operations.
The affidavit further stated that the confidential informant was
credible and reliable, had been in the home of the defendant a
number of times, had seen the marijuana grow operation, and had
spoken with the Sarbaums about the marijuana grow operation. The
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confidential informant provided very specific information about the
grow operation. Moreover, as noted in our discussion of issue I,
the affidavit contained information from two other police officers
that supported the likelihood that the Sarbaums were conducting an
illegal activity in their home
We conclude that the information provided by the confidential
informant, whom the applicant, an experienced police officer,
stated was credible and reliable, together with the observations of
the other two officers, under the totality of circumstances,
provided a substantial basis upon which the issuing magistrate
could conclude that there was a fair probability that incriminating
items would be found on the Sarbaums' premises. Hulbert, a77 P.2d
at 30.
Moreover, we also conclude that the defendant's argument that
the information in the application was stale is without merit. As
we observed in State v. Pierre (1984), 208 Mont. 430, 436-37, 678
P.2d 650, 654:
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
regenerating 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.
Rinehart, 864 P.2d at 1224-25.
The affidavit in the instant case states that the confidential
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informant was in the Sarbaum home about four times in the three
months prior to the application and U [tlhe time between the first
time in the residence and the last time in the residence [was]
approximately two months." The confidential informant stated that
the most recently planted marijuana plants would be ready for
harvest around the time of the application for the search warrant.
The other police officers had been in the home in the fall of 1992,
on February 28, 1993, and on April 10, 1993.
The information provided from these dates is not too remote in
time, and the information is not stale. While some of this
information, considered individually, might be considered stale,
"[wlhen a criminal activity is continuing in nature . . more time
may elapse between the observation of the activity and the
application for the search warrant without negating probable
cause." Rinehart, 864 P.2d at 1225. When the earlier information
is combined with more recent information, the earlier information
carries greater weight in the determination of probable cause.
Rinehart, 864 P.2d at 1225. "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." Rinehart, 864 P.2d at 1225. We likewise conclude
that, here, the information in the application was not too stale to
support a determination of probable cause. See also; Hulbert, 877
P.2d at 29, (the observation of marijuana plants by a confidential
informant three and one-half weeks before the search warrant was
13
issued was not "stale" information.)
The defendant also questions the reliability of the informant.
This argument, too, is not persuasive. In Rinehart, we reiterated
that a statement in the affidavit by the affiant attesting to an
informant's past reliability is sufficient to establish the
reliability of an informant. Rinehart, 864 P.2d at 1223-24. In
fact, an officer may even rely on information about an informant's
reliability from other police officers. See State v. Seaman
(1989), 236 Mont. 466, 771 P.2d 950. The reliability of the
confidential informant in the instant case was sufficiently
established by Detective Gassett's statements attesting to the
informant's reliability and credibility.
Finally, Sarbaum's argument that the information from the
confidential informant was not sufficiently corroborated is not
well taken. "Corroboration of an informant's information through
other sources is necessary when the information is hearsay or the
informant is anonymous." Rinehart, 864 P.2d at 1224; see also
Crowder, 810 P.2d at 302. In the instant case, the confidential
informant provided information based on his own personal
observations of the grow operation in the Sarbaum home. Statements
of personal observation are not hearsay. Rinehart, 864 P.2d at
1224. In State v. Walston (1989), 236 Mont. 218, 768 P.2d 1387, we
stated that:
. . . information of a criminal activity known from
observation by a previously reliable informant, such as
we have in the present case, is sufficient to establish
the probability of criminal activity without outside
investigation and verification of the reported
information.
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Walston, 768 P.zd at 1390. Here, an informant, determined by an
experienced police officer to be credible and reliable, provided
information based on his personal observations at the Sarbaum
residence. That information was also supported by the observations
from other police officers of conduct consistent with illegal
activity at the Sarbaum residence. As stated above, under the
totality of circumstances, the affidavit and application provided
a substantial basis upon which the issuing magistrate could
conclude that there was a fair probability that incriminating items
would be found on the Sarbaum's premises.
Accordingly, we hold that the District Court did not err in
denying the defendant's motion to suppress evidence obtained in the
search of the Sarbaum residence. /
AFFIRMED.
We Concur:
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