96-302
No. 96-302
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and
Respondent,
vs.
NORMAN ALVIN ADAMS
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy N. Guth, Lincoln County Public Defender, Libby, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing,
Assistant
Attorney General; Bernie Cassidy, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: December 19, 1996
Decided: July 15, 1997
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Nineteenth Judicial District Court, Lincoln
County. On
February 22, 1996, the District Court entered its findings of fact, conclusions of
law and
order denying Defendant Adams' motion to suppress evidence seized pursuant to a
search
warrant. From this judgment, Defendant Adams appeals. We affirm.
The sole issue raised on appeal is whether the State conducted a search of
Defendant Adams' home which violated Defendant Adams' constitutional guarantees of
privacy and freedom from unreasonable search and seizure.
FACTUAL AND PROCEDURAL BACKGROUND
This case arose from a search of the rented residence of Defendant Adams
(Adams) located in Libby, Montana. The search was conducted pursuant to a search
warrant issued based upon information supplied by Michael Dotts (Dotts), a man
arrested
on September 23, 1995, in Lincoln County for assault and disorderly conduct. Upon
his
arrest, Dotts gave the police a false name. After his arrest, Dotts advised the
police that
he had information concerning a marijuana growing operation in Libby.
On September 25, 1995, during his first interview with the police, Dotts told
Detective Hurtig and Detective Martin he would like to make a deal with them.
Although
Dotts did not want the charges against him dropped, he wanted to be released on his
own
recognizance in exchange for his information regarding the marijuana growing
operation.
The detectives advised Dotts that they could not guarantee him anything. Rather,
they
told Dotts he should tell them everything he knew and explained that if his
information
was used, they might be able to help him; but, if the information was not used, he
would
remain in jail.
Dotts explained, in this first interview, that he had previously lived with
Adams'
son, Gary, but that the marijuana growing operation was in Adams' house in Libby.
Because Dotts could not remember the address of Adams' house, he left the station
with
the detectives and pointed out a gray house with an off-yellow roof, located on the
corner
of Quartz Road and Rawlings Road. After returning to the station to complete this
first
interview, Dotts told the detectives that he had helped to set up the grow operation
in
Adams' house. He described the grow operation as a hydroponic system, where the
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plants are grown in water, with a 1000-watt converter bulb and a 400-watt, two burner
bulb used as grow lights.
After this first interview, Detective Hurtig again went to Adams' residence,
without Dotts. He took pictures of Adams' house and two vehicles parked in front of
the
house--a brown Mustang and a white Lincoln--vehicles which were not present when
Dotts first identified the house. Upon his return to the station, Detective Hurtig
learned
that the State of Washington had a warrant for Dotts' arrest. Consequently, only two
hours after the first interview, Detective Hurtig conducted a second interview with
Dotts.
He explained to Dotts that due to the outstanding warrant, he could not release
Dotts on
his own recognizance. Despite this, Dotts agreed to interview with Detective Hurtig
for
a second time to describe the marijuana growing operation in Libby.
In the second interview, Dotts again described the hydroponic marijuana
growing
operation he helped set up and the type of plants that Adams was growing. Dotts
explained that only three weeks earlier he had been in Adams' house which Dotts
believed Adams rented under a false name. Additionally, Dotts' description of the
vehicles driven by Adams and his son, Gary, matched the description of the vehicles
that
Detective Hurtig had previously photographed at Adams' house. Furthermore, Dotts
stated that, prior to his arrest that day, he had talked with Gary Adams who
informed him
that "they were moving the plants" and getting ready to go to Sandpoint, Idaho.
Shortly
after this second interview, Detective Hurtig corroborated Dotts' statement by
locating
in the Clerk and Recorderþs office the name of the owner of the house Adams rented,
calling the owner and confirming that Adams was renting the house under his true
name.
Based upon Dotts' information, Detective Hurtig prepared a search warrant
application that same day (September 25, 1995) using a generic search warrant form
that
he obtained from the Montana Department of Justice which specifically listed the
types
of materials commonly used and found in conjunction with a marijuana growing
operation. In this application, Detective Hurtig did not use Dotts as a confidential
informant, but rather specifically identified him. Detective Hurtig explained that
Dotts
had provided him with information about a growing operation involving over 100
marijuana plants while Dotts was held in the Lincoln County Jail due to his arrest in
Lincoln County for assault and because the State of Washington had issued a warrant
for
his arrest. Detective Hurtig also explained Dotts' role in helping to set up the
marijuana
growing operation in Adams' house. Furthermore, Detective Hurtig described his
personal observations of Dotts and explained how he had corroborated Dotts'
information.
Without consulting the Lincoln County Attorney's Office, Detective Hurtig
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presented the search warrant application on September 25, 1995, to the acting
district
court judge who reviewed the application and signed the search warrant authorizing a
search of Adams' residence. That same afternoon, Detective Hurtig served and
executed
the search warrant on Adams' house. The search yielded a sophisticated hydroponic
marijuana growing operation and approximately 133 marijuana plants in different
stages
of growth. Apparently, either a search of the vehicles on the property was not
conducted or if a search was conducted, no incriminating evidence was found.
Thereafter, Detective Hurtig arrested Adams on the charge of Criminal Production or
Manufacture of Dangerous Drugs.
On October 5, 1995, Adams was charged with Criminal Production or
Manufacture of Dangerous Drugs pursuant to 45-9-110, MCA. Adams filed a motion
to suppress evidence seized pursuant to a search warrant and the District Court
heard this
motion on February 5, 1996. On February 22, 1996, the District Court entered its
findings of fact, conclusions of law and order denying Adams' motion to suppress.
Subsequently, Adams entered into a plea agreement. Pursuant to the plea agreement,
Adams plead guilty to Criminal Possession of Dangerous Drugs pursuant to 45-9-102,
MCA, and the State agreed to dismiss the charge of Criminal Production or Manufacture
of Dangerous Drugs. Adams reserved the right to appeal the District Court's denial
of
his suppression motion. On April 17, 1996, Adams entered a guilty plea,
acknowledging
that he had possessed marijuana in his home on September 25, 1995, in violation of
the
law. On May 23, 1996, Adams was given a three-year deferred sentence with a $500.00
fine. Adams now appeals the District Court's February 22, 1996 Order denying his
motion to suppress.
DISCUSSION
Did the State conduct a search of Adams' home which violated Adams'
constitutional guarantees of privacy and freedom from unreasonable search and
seizure?
On January 17, 1996, Adams filed a motion to suppress evidence seized by the
Lincoln County Sheriff's Department during the search conducted on September 25,
1995, and requested that the District Court conduct a hearing pursuant to Franks v.
Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (procedure for
challenging the truthfulness of factual statements made in an application for search
warrant). In his brief supporting his suppression motion, Adams alleged that the
State
conducted an unreasonable search because the search warrant lacked probable cause.
Pursuant to Adams' request in his suppression motion, the District Court conducted a
hearing on February 5, 1996, and heard the testimony of Detectives Hurtig and Martin
as well as Adams.
Subsequently, the District Court entered its findings of fact, conclusions of
law and
order denying Adams' motion to suppress. In Conclusion of Law No. 3, the District
Court stated:
On the facts before the Court, it cannot be said that Dotts' statements
should have been rejected as coming from a source unworthy of belief.
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The Court concludes that the Lincoln County Sheriff's Office had probable
cause to believe that drugs were present in a house they knew to be
occupied by Adams.
Dotts' admissions to: (1) selling the grow equipment to Adams; (2)
assisting Adams in setting up the operation; and (3) manicuring the
marijuana plants for Adams, are all corroborative of Dotts' statements
regarding the presence of a marijuana grow operation in Adams' residence.
Furthermore, regarding corroboration, the Application states:
"Mr. Dotts said that Norman Adams drove a white Lincoln
with Alaska license plates, and that Gary Adams drove a Ford
Mustang GT that was brown in color that had Montana
license on it. This matches the two vehicles that were parked
in front of the residence of 45 Quartz Road although I could
not see the license plates of the vehicles. I then checked with
the Land Classification Office in the Lincoln County
Courthouse to find out who owned the property and found
that it was owned by Greg and Susan Rice of Libby. I
contacted Susan Rice and she told me that Norman Adams
was currently renting the property from them. Mr. Dotts
appears to be telling the truth and I was able to confirm a
large portion of the information that he has given me. Mr.
Dotts asked for nothing in giving me this information and I
have offered him nothing in return for this information."
The fact that Dotts happened to know the types of cars driven by the
Adams and the fact that Adams was renting the residence from a doctor
contribute little of substance to his credibility. Nonetheless, these minor
facts, coupled with Dotts' admissions against interest, do provide some
corroboration which further bolsters his testimony.
Granted, the information in the Application is arguably incomplete
or inaccurate. For instance, it is not mentioned in the Application that,
contrary to Dotts' statement to the detectives, Adams was not renting the
house under an alias. Nor is it mentioned in the Application that the only
alias involved in this case was the one Dotts himself used when he was
arrested.
Nor is it entirely true that "Dotts asked for nothing in giving me this
information . . ." In fact, when he first offered the information, Dotts
made it clear he was seeking a release from custody on his own
recognizance. Before the search warrant was actually issued, Detective
Hurtig testified that he had received information from the State of
Washington that Dotts was to be held in custody without bail, and he had
conveyed this information to Dotts, but when Dotts provided the
information which formed the basis of the Application, he was operating
under the hope and belief that the detectives could assist him in being
released from custody.
These inconsistencies are troubling but not fatal. The fact remains
that Dotts provided detailed and fresh information about criminal activity,
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and his status as a co-conspirator in that criminal activity, coupled with his
knowledge of certain collateral facts, establish his trustworthiness for
purposes of the Application. The Court concludes probable cause was
established for the search of Adams' residence.
On appeal, Adams raises three arguments to support his contention that the
District
Court erred by denying his suppression motion. First, pursuant to Article II,
Section 10
of the Montana Constitution, Adams argues that we should adopt a policy of "zero
tolerance" when intentional misstatements or omissions of police officers are made in
search warrant applications. Second, pursuant to Article II, Section 11 of the
Montana
Constitution, Adams argues that the search warrant was not supported by sufficient
probable cause due to Detective Hurtig's alleged intentional misstatements and
omissions
in his search warrant application. Finally, Adams argues that the search warrant was
unconstitutionally overbroad because it did not state with sufficient particularity
the items
to be seized in Adams' residence.
Adams first argues that, based on Article II, Section 10 of the Montana
Constitution, Montana's privacy clause, this Court should abandon the procedure set
forth
in Franks which allows a court to reevaluate the sufficiency of probable cause
supporting
a search warrant after excising any misstatements which a defendant has proven by a
preponderance of the evidence to be intentional. In its place, Adams argues that we
should adopt a policy of "zero tolerance" which would allow a court to quash an
entire
search warrant if the warrant's application contained intentional misstatements or
omissions. The State responds that we should not address this issue because Adams
raises it for the first time on appeal.
Upon review of Adams' brief in support of his motion to suppress and the
transcript of the District Court hearing held February 5, 1996, we conclude that
Adams
did not raise this theory of "zero tolerance" to support his objection to the search
warrant
application. Therefore, because this argument is raised for the first time on
appeal, we
will not address it. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100.
Consequently, the procedure set forth in Franks is controlling in this case.
While Adams' next argument is not clearly articulated on appeal, he appears to
alternatively rely on Article II, Section 11 of the Montana Constitution and Franks
to
assert that this Court should review the District Court's conclusions regarding
Detective
Hurtig's alleged misstatements and omissions as well as the court's overall decision
that
the search warrant was supported by sufficient probable cause. Unlike Adams' first
argument concerning our adoption of a policy of "zero tolerance," we note that Adams,
in his suppression motion, requested that the District Court hold a Franks hearing to
address Detective Hurtig's alleged misstatements and omissions. Furthermore, after
the
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hearing held February 5, 1996, the District Court directly addressed these issues in
its
February 22, 1996 Order, as evidenced in Conclusion of Law No. 3, set forth above.
Consequently, because Adams raised this argument before the District Court, we will
address the merits of Adams' second argument now on appeal.
Relying on State v. Valley (1992), 252 Mont. 489, 830 P.2d 1255; and State v.
Kaluza (1995), 272 Mont. 404, 901 P.2d 107, Adams argues that the District Court
erred
when it denied his motion to suppress based on its determination that sufficient
probable
cause supported the search warrant. Adams asserts that probable cause did not exist
because Detective Hurtig failed to fully corroborate all of the information provided
by
Dotts and because his statement in the search warrant application describing Dotts
as a
reliable informant was not based on any objective facts. Adams contends that
Detective
Hurtig's assertion of Dotts' reliability is baseless for a number of reasons.
First, Adams
notes that Detective Hurtig omitted from the search warrant application the fact
that Dotts
had given a false name upon his arrest. Second, Adams claims that Detective Hurtig
misstated that Dotts did not expect to be released from jail in return for his
information.
Finally, Adams asserts that Detective Hurtig's statements concerning Dotts'
reliability are
directly contradicted by Detective Martin's statements, made during Dotts' first
interview,
that the detectives did not know him.
The State responds that Adams' reliance on Valley and Kaluza to assert that
Dotts
was an "unreliable" informant is misplaced because, unlike in those cases, Dotts was
not
a confidential informant. Rather, the State argues that Dotts' veracity and
reliability were
established when he made statements implicating himself in the marijuana growing
operation. That is, the State contends that because Dotts' information concerning
the
marijuana growing operation allegedly located in Adams' house implicated Dottsþ own
penal interests, his statements were inherently reliable, and, therefore, did not
require
corroboration. Furthermore, the State maintains that the omissions and
misstatements that
Adams argues Detective Hurtig made in the application for search warrant are
immaterial
to the determination of Dotts' credibility. Finally, the State asserts that Dotts'
basis of
knowledge was established because he provided fresh, detailed information based upon
his personal observation of the growing operation. Accordingly, the State argues
that the
District Court properly concluded that the search warrant was supported by probable
cause, and, thereby properly denied Adams' motion to suppress. We agree.
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"We review the District Court's conclusions of law in ruling on a motion to
suppress evidence to determine whether the trial court's interpretation and
application of
the law is correct." State v. Pastos (1994), 269 Mont. 43, 45, 887 P.2d 199, 201.
Generally, probable cause must be determined from the four corners of the search
warrant application. State v. Rinehart (1993), 262 Mont. 204, 211, 864 P.2d 1219,
1223. However, the United States Supreme Court set forth an exception to this rule
in
Franks, which allowed a defendant to challenge the truthfulness of statements made
in an
application for search warrant. We adopted the Franks procedure in State v. Sykes
(1983), 194 Mont. 14, 20, 663 P.2d 691, 695, and we have since consistently applied
this rationale. See e.g., State v. Feland (1994), 267 Mont. 112, 882 P.2d 500;
State v.
Mosley (1993), 260 Mont. 109, 860 P.2d 69; State v. Garberding (1990), 245 Mont.
356, 801 P.2d 583; State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864 (overruled on
other grounds); State v. Wilson (1985), 218 Mont. 359, 708 P.2d 270.
In Mosley, we described the Franks procedure as follows:
The defendant must first make a substantial preliminary showing that a false
statement was knowingly or intentionally made, or was made with reckless
disregard for the truth. If defendant makes such a showing, and the
misstatement was necessary to a finding of probable cause, a hearing must
be held at defendant's request. When a hearing is held, the allegation of
perjury or reckless disregard must be proved by defendant by a
preponderance of the evidence. Once proved, the offending information
must be excised from the warrant application. If after the egregious
material is excised, the remaining content is insufficient to establish
probable cause, the search warrant must be voided and the fruits of the
search excluded.
Mosley, 860 P.2d at 73 (citing Franks, 438 U.S. at 155-56).
Accordingly, before we address Adams' argument that the search warrant lacked
probable cause, we must first consider the effect of Detective Hurtig's alleged
misstatements and omissions on Dotts' credibility. Adams first notes that Detective
Hurtig omitted from the search warrant application the fact that Dotts had given a
false
name upon his arrest. Second, Adams claims that Detective Hurtig misstated that
Dotts
did not expect to be released from jail in return for his information. We agree
with the
State that this information is immaterial to the determination of Dotts'
credibility.
In Garberding, a defendant similarly argued that the district court erred by
denying him an evidentiary hearing pursuant to Franks based on the alleged facts
that the
sheriff had failed to indicate in the search warrant application that the primary
informant
was a convicted felon and had received a cash reward for his information.
Garberding,
801 P.2d at 586. We disagreed with the defendant, concluding that these alleged
misstatements and omissions did not justify a Franks hearing. Garberding, 801 P.2d
at
586. Rather, we concluded that this information added credit to the informant's tip
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because "[a] person of known criminal activity or a person admitting his own criminal
activity is not likely to place himself in such a dubious position unless he is
telling the
truth." Garberding, 801 P.2d at 586.
Here, the District Court concluded in Conclusion of Law No. 3, that upon
review
of the misstatements and omissions regarding Dotts' use of a false name upon his
arrest,
his expectation of release in exchange for his information about the marijuana
growing
operation, as well as Dotts' admissions concerning his participation in the growing
operation, "it cannot be said that Dotts' statements should have been rejected as
coming
from a source unworthy of belief." We agree. Just as in Garberding, Dotts admitted
to
his own criminal activity, and, therefore, the information about Dotts' use of a
false name
and his expectation of release "does not cast doubt on the reliability of his
information."
See Garberding, 801 P.2d at 586. Consequently, we find unpersuasive Adams'
arguments that based on Detective Hurtig's misstatements and omissions the District
Court erred when it denied his motion to suppress.
Additionally, we find unpersuasive Adams' argument that Detective Hurtig's
statements in the search warrant application concerning Dotts' reliability are
directly
contradicted by Detective Martin's statements, made during Dotts' first interview,
that
the detectives did not know him. In response to Dotts' question, Detective Martin
explained in this first interview that he could not use Dotts as a confidential
informant
because this was the first time he had met Dotts:
If I put down in a search warrant I have a confidential reliable
informant, it has to be something or somebody I know, somebody that I've
dealt with in the past, somebody that I know has been truthful with me in
the past and has never lied to me and so the information they're giving me
is going to be truthful now. . . .. With you, I don't have that boat to go
rowing in.
Contrary to Adams' argument, Detective Martin's comments do not contradict Detective
Hurtig's statements concerning Dotts' reliability. Rather, we consider these
comments
merely an explanation why Dotts would not be used as a confidential informant.
Having concluded that the misstatements and omissions concerning Dotts' use of
a false name and expectation of release are immaterial to his credibility, we next
consider
whether the District Court correctly concluded that probable cause supported the
search
warrant. When reviewing the issuance of a search warrant, our duty is to ensure
that the
magistrate or lower court had a substantial basis for concluding that probable cause
existed; our duty is not to review the lower court's determination de novo.
Rinehart, 864
P.2d at 1223.
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A magistrate'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. 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.
Rinehart, 864 P.2d at 1223 (citations omitted).
The Fourth Amendment to the United States Constitution and Article II,
Section
11 of the Montana Constitution protect a person's right to be free from unlawful
searches
and seizures by requiring that probable cause exist before a search warrant is
issued.
Rinehart, 864 P.2d at 1222. Yet, prior to issuing a search warrant, a magistrate
must
determine only that there is a probability, not a prima facie showing, of criminal
activity.
Rinehart, 864 P.2d at 1222. We previously adopted the "totality of the
circumstances"
test, as set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.
Ed.2d
527, to determine whether probable cause existed for issuance of a search warrant.
State
v. O'Neill (1984), 208 Mont. 386, 679 P.2d 760. In determining probable cause under
the totality of the circumstances test, the veracity, reliability and basis of
knowledge of
an informant remain highly relevant factors. Rinehart, 864 P.2d at 1222.
As the State correctly contends, Adams' reliance on Valley and Kaluza to argue
that Dotts' information lacked veracity and reliability is misplaced because both
cases
involved confidential informants or anonymous tips. See Valley, 830 P.2d 1255;
Kaluza,
901 P.2d 107. In contrast to the informants in those cases, Dotts was not a
confidential
informant, and, therefore, Detective Hurtig did not need to verify Dotts'
reliability by
referencing his past conduct. Rather, Dotts' veracity and reliability were
established
through Dotts' statements implicating himself in the marijuana growing operation.
See
State v. Sundberg (1988), 235 Mont. 115, 121, 765 P.2d 736, 740. See also
Garberding,
801 P.2d at 586.
In fact, even if Dotts had been a confidential informant, the information he
provided would have established sufficient probable cause because he admitted to
helping
set up the marijuana growing operation in Adams' house. See Sundberg, 765 P.2d at
740
(admissions against interest are sufficient to establish probable cause). In
Sundberg, a
confidential informant admitted to marijuana use and stated that he had been to the
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defendant's home within the previous ten days and had seen marijuana growing there.
We concluded that the affidavit containing this information was sufficient to
establish
probable cause for a search warrant. In support of our conclusion, we quoted the
United
States Supreme Court:
Common sense in the important daily affairs of life would induce a prudent
and disinterested observer to credit these statements. People do not lightly
admit a crime and place critical evidence in the hands of the police in the
form of their own admissions. Admissions of crime, like admissions
against proprietary interests, carry their own indicia of credibility--
sufficient at least to support a finding of probable cause to search. That
the informant may be paid or promised a "break" does not eliminate the
residual risk and opp[r]obrium of having committed criminal conduct . . ..
Sundberg, 765 P.2d at 740 (quoting United States v. Harris (1971), 403 U.S. 573, 583-
84, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723, 734) (emphasis added).
Here, Dotts' credibility also is sufficient to support a finding of probable
cause to
search. First, Dotts was not used as a confidential informant. Second, as the
District
Court noted, Dotts admitted selling marijuana growing equipment to Adams; assisting
Adams in setting up the operation; and manicuring marijuana plants for Adams. Based
on this information, the District Court correctly concluded that "[Dotts'] status as
a co-
conspirator in that criminal activity, coupled with his knowledge of certain
collateral
facts, establish his trustworthiness for purposes of the Application [for Search
Warrant]."
Despite Adams' arguments to the contrary, Detective Hurtig did not need to include
additional information in the search warrant application concerning Dotts' past
conduct
to establish Dotts' reliability or veracity.
Nonetheless, Adams also contends that Detective Hurtig failed to fully
corroborate
Dotts' information. Specifically, Adams asserts that Detective Hurtig needed to more
fully corroborate Dotts' information than just verifying that Dotts could properly
identify
Adams' house and the vehicles that Adams and his son drove as well as verifying that
Adams rented the identified house. Yet, corroboration of an informant's information
through other sources is only necessary when the information is hearsay or the
informant
is anonymous. Rinehart, 864 P.2d at 1224. Here, Dotts personally observed the
marijuana growing operation in Adams' house and he was not used as an anonymous
informant. Consequently, corroboration of Dotts' information was not necessary. See
Rinehart, 864 P.2d at 1224.
In sum, we conclude that Detective Hurtig's misstatements and omissions were
immaterial to the determination of Dotts' credibility. Furthermore, we conclude that
Dotts' admissions against interest regarding his participation in setting up the
marijuana
growing operation, without any further corroboration, provided the District Court
with
a substantial basis for concluding that probable cause supported the search
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warrant.
Accordingly, we hold that the District Court properly denied Adams' motion to
suppress.
Finally, Adams argues that the search warrant was unconstitutionally overbroad
because it did not state with sufficient particularity the items to be seized in
Adams'
residence. At the conclusion of the February 5, 1996 suppression hearing, Adams
informed the District Court that he would file a supplemental brief raising the
issue that
the search warrant was overbroad. Adams acknowledges that he failed to file this
supplemental brief "for reasons contained outside of the court record." Upon review
of
the record, we also note that no record of Adams' objection concerning the search
warrant's overbreadth was made. However, the District Court did address this issue
in
its February 22, 1996 decision. Conclusion of Law No. 4 states in pertinent part:
[Adams] raised a question about the scope of the search permitted by
the Search Warrant. Specifically, [Adams] objects that Detective Hurtig
was authorized to search the vehicles as well as the residence itself. . . ..
In this case, however, because no search of the vehicles was apparently
conducted, or if one was, no incriminating evidence was located in the
vehicles, there is no basis to object to the search.
Now on appeal, Adams raises this issue concerning the search warrant's
overbreadth, but he does not argue that authorization for a search of the vehicles
was
overbroad, rather he argues that the search warrant application and the search
warrant
were standardized forms enumerating "all the various things that any person,
including
those engaged in ordinary legal activities, might legitimately have in their homes or
offices." Therefore, Adams contends that because the search warrant did not specify
with
sufficient particularity the items to be seized in Adams' residence, it was
unconstitutionally broad. Additionally, Adams asserts that despite his failure to
file his
supplemental brief, the District Court did consider and rule upon the overbreadth
issue
in its Memorandum in Support of the Order filed jointly with its February 22, 1996
decision.
The State responds that we should not address this issue because Adams raises
it
for the first time on appeal. Referring to the District Court's Conclusion of Law
No.
4, the State contends that while it appears that Adams objected to the breadth of the
search warrant, he only did so to the extent the search warrant authorized the
search of
the vehicles. The State asserts that Adams never objected to the search warrant on
the
grounds that the warrant did not state with sufficient particularity the items to be
seized
within the residence. Consequently, the State argues that Adams raises a new theory
for
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his objection concerning the search warrant's overbreadth for the first time on
appeal,
and, therefore, we should not address this issue. We agree.
A party may not change his theory on appeal from that advanced in the district
court. State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016. Upon
review of Adams' brief in support of his motion to suppress evidence and the
transcript
of the District Court hearing held February 5, 1996, we conclude that Adams did not
raise this theory to support his objection to the breadth of the search warrant.
Consequently, we will not address the merits of this argument.
In sum, we hold that the District Court had a substantial basis for
concluding that
probable cause supported the search warrant, and, therefore, the District Court
properly
denied Adams' motion to suppress.
Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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