State v. Reesman

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

No. 99-142

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 243

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JOHN REESMAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Mike Salvagni, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jennifer Wendt Bordy, Bozeman, Montana

For Respondent:

Joseph P. Mazurek, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General,
Helena, Montana; Marty Lambert, Gallatin County Attorney, Jane Mersen, Deputy Gallatin County
Attorney, Bozeman, Montana

Heard: May 1, 2000

Submitted: June 1, 2000

Decided: September 11, 2000

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (1 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 John Reesman (Reesman) appeals from two orders issued by the Eighteenth Judicial District Court,
Gallatin County, which denied his motion to suppress evidence, and denied his motion to dismiss based
on destruction of evidence.

¶2 We reverse and remand for further proceedings consistent with this opinion.

¶3 Reesman raises the following issues on appeal:

1. Did the District Court err when it denied Reesman's motion to suppress evidence seized as the
result of an illegal search?

2. Did the District Court err when it denied Reesman's motion to dismiss the charges because the
State destroyed evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 During the search of a trailer home located in Big Sky, Montana, in which Gallatin County Sheriff's
officers believed marijuana was growing in a bedroom closet, more than 100 "hits" of LSD were found
in another bedroom where the Appellant Reesman lived. The search was conducted pursuant to a search
warrant allegedly validated by the statements of a confidential informant and corroborated by
information received from an "anonymous citizen."

¶5 Reesman's motion to suppress the evidence gathered in his bedroom as well as his testimony to the
officers was heard by the District Court on July 24, 1998. The following factual scenario was set forth in
the warrant application and testified to at the hearing.

¶6 On November 28, 1995, a confidential informant provided Gallatin County Detective Don Hanson
(Hanson) with first-hand information concerning a variety of illegal drug-related activity at a trailer
home located in Big Sky, Montana. Hanson was assigned at the time to the Missouri River Drug Task
Force. The warrant application did not indicate whether the informant had provided law enforcement
officers with accurate information regarding criminal activity in the past.

¶7 The informant stated that a person named Brent Hoge, or "Beau Dylan Hogge" answered the door,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (2 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

and escorted her to his bedroom located at the north end of the trailer. There, he allegedly revealed
marijuana growing in a closet, as well as recently harvested "buds." According to the informant, he also
showed her spore-like growth in a styrofoam cup, which he claimed were mushrooms that produce the
illegal hallucinogen, psilocybin. These described events allegedly took place, according to the
informant, on the weekend of October 28, 1995. The informant did not give information that any other
person was conducting illegal activity of any type in the trailer, and she did not mention Reesman by
name, or indicate that he was living in the trailer.

¶8 Hanson also testified that an "anonymous citizen," who had provided reliable information in the past,
told him that the marijuana growing operation had existed at that location for approximately one year.
This information was included in the application. The application omitted, however, further detail as to
whether this informant's information came from personal observation, or under what context law
enforcement personnel had received the prior reliable information.

¶9 According to testimony, neither Hanson nor any other law enforcement officer took further steps to
corroborate the information supplied by the informant and anonymous citizen other than, apparently,
confirming that a trailer as described by the informants was located at the given address. Hanson
testified that he attempted to learn more about other residents at the trailer through telephone records,
power records, and vehicles at the residence. Despite these efforts, he was unable to ascertain who
owned the trailer, and no information concerning any such records was included in his application for
the search warrant.

¶10 Nevertheless, Hanson applied for and obtained a search warrant for the entire trailer two days later
on November 30, 1995. On that same day, at approximately 11:40 a.m., the search warrant was executed
by Hanson and other officers. Four persons were found in the trailer, including Reesman, as officers
commenced gathering evidence pursuant to the search warrant.

¶11 Hanson advised Reesman of his constitutional rights pursuant to Miranda, and interviewed him
in his bedroom. During this interview two other officers searched Reesman's bedroom.
Reesman signed a written "waiver of rights" form at that time, which gave the officers
permission to conduct the search. The waiver form expressly included the entire
residence. Reesman would contend that in signing the waiver, he believed he was only
consenting to a search of his vehicle. Hanson's report, in fact, stated that he obtained only
Reesman's consent to search the vehicle. Reesman testified that he did not understand the
consent form at the time, and would not have consented to the search of his bedroom if he
had been given the option. Although the waiver was sought, Hanson maintained that the
original warrant validly provided that officers could search the entire trailer.

¶12 The initial search of Reesman's bedroom produced 13 hits of LSD. Reesman then told
the officers where more could be found in his room. The officers found an additional 110

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (3 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

hits of LSD.

¶13 On May 22, 1998, Reesman moved to suppress the evidence found in his bedroom, as
well as his statements made to officers at the time, claiming that the search warrant issued
for the entire trailer lacked probable cause, and that it was overbroad. At that time,
Reesman pled not guilty to one count of criminal possession of dangerous drugs with
intent to sell, a felony, and criminal possession of drug paraphernalia, a misdemeanor.

¶14 Following the July 24, 1998 hearing, the District Court issued its Findings of Fact,
Conclusions of Law, and Order. The court followed the well-established Montana rule
that the determination of whether there was sufficient probable cause for a court to issue a
search warrant must follow the "totality of the circumstances" test.

¶15 The court determined that corroboration of the confidential informant's first-hand,
detailed information by an anonymous tip weighed heavily in favor of the informant's
reliability, and therefore concluded that there was a substantial basis upon which the
issuing court found probable cause for the search warrant. The court stated, in its
conclusions of law, that "[t]he application for the search warrant provided sufficient
probable cause that criminal activity was occurring at the residence named in the caption."

¶16 The court also determined that Reesman's consent was, ultimately, immaterial in that
the original search warrant covered the entire residence, including Reesman's bedroom.
Even so, the court concluded that "the consent was sought to only search the vehicle."

¶17 Reesman ultimately pled guilty, pursuant to a plea agreement, to one count of
criminal possession of dangerous drugs, which is a felony offense. He received a
suspended sentence of three years. Reesman appealed the District Court's order denying
his motion to suppress evidence, as well as a denial of a motion to dismiss based on
destruction of evidence. This matter was heard at oral argument on May 1, 2000.

STANDARD OF REVIEW

¶18 The standard of review of a district court's denial of a motion to suppress is whether
the court's findings of fact are clearly erroneous. See State v. Kuneff, 1998 MT 287, ¶ 6,
291 Mont. 474, ¶ 6, 970 P.2d 556, ¶ 6 (citing State v. Siegal (1997), 281 Mont. 250, 257,
934 P.2d 176, 180). Further, the standard of review of a district court's denial of a motion
to suppress is whether the court's interpretation and application of the law is correct. See

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (4 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

State v. Hubbel (1997), 286 Mont. 200, 207, 951 P.2d 971, 975 (citation omitted).

¶19 Finally, this Court's function as a reviewing court is to ultimately ensure that the
magistrate or the lower court had a "substantial basis" to determine that probable cause
existed. State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302. It is critical in
our review, however, that a magistrate's determination that probable cause exists be paid
great deference and every reasonable inference possible be drawn to support that
determination. State v. Rinehart (1993), 262 Mont. 204, 211, 864 P.2d 1219, 1223
(citations omitted).

DISCUSSION

¶20 Reesman claims that, from a number of legal angles, the search warrant issued in this
instance must be viewed as "fatally" defective, and that due to the destruction of evidence,
the District Court erred by not dismissing this case. We conclude that the issue of whether
the information supplied by the informants was sufficient to establish probable cause is
dispositive, and we therefore narrow our review without reaching the other issues raised
by Reesman.

¶21 Furthermore, the State concedes that, in light of the District Court's findings and
conclusions, Reesman did not validly consent to a search of his bedroom and thus the
signed waiver was ineffective. Therefore, if information provided in the application for
the search warrant did not provide a substantial basis for a probable cause determination,
the District Court's denial of Reesman's motion to suppress evidence must be reversed.
Accordingly, we address the following issue, which we restate as follows:

Issue

Did the District Court err by concluding that the application for a search warrant,
which provided a confidential informant's information supplied to law enforcement
officers as well as corroboration by an anonymous citizen, created a substantial basis
upon which a magistrate could determine probable cause?

¶22 The District Court concluded that "[t]he application for the search warrant provided
sufficient probable cause that criminal activity was occurring at the residence named in
the caption." Reesman points to the fact that the information provided by the confidential
informant found in the application was corroborated only by an "anonymous citizen," and

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (5 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

not by further independent police investigation. The reliability of the "anonymous"
citizen, in turn, was not corroborated by any further independent investigation. Thus, he
contends, the warrant application clearly failed to establish probable cause pursuant to
Montana's case law grounded in the Gates totality of the circumstances test.

¶23 Although conceding that law enforcement personnel did not personally take action to
independently corroborate the two informants' information, the State argues that the
confidential informant had personal knowledge of the marijuana growing operation in
Hogge's bedroom, and her information was independently corroborated by a citizen
informant who had given reliable information in the past and who reported that the
marijuana growing operation seen by the confidential informant had been in effect for
nearly a year. The State contends that, taken as a whole, the combination of this
information is sufficient standing alone to establish probable cause for the search warrant
under the totality of the circumstances test.

¶24 The core question here, therefore, is the sufficiency of the application for a search warrant. An
application for a search warrant must state facts sufficient to show probable cause for the issuance of the
warrant. See § 46-5-221, MCA; State v. Kuneff, 1998 MT 287, ¶ 21, 291 Mont. 474, ¶ 21,
970 P.2d 556, ¶ 21. To address the issue of probable cause for issuance of a warrant, this
Court follows the "totality of the circumstances" test set forth in Illinois v. Gates (1983),
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. See State v. Crowder (1991), 248 Mont.
169, 173, 810 P.2d 299, 302. Under this test, to determine whether a search warrant
should be issued, the judge evaluates the facts asserted within the four corners of the
application and makes a practical, common-sense decision as to whether there is a fair
probability that incriminating items will be found in the place to which entry is sought.
See State v. Worrall, 1999 MT 55, ¶ 28, 293 Mont. 439, ¶ 28, 976 P.2d 968, ¶ 28 (citing
State v. Sundberg (1988), 235 Mont. 115, 119, 765 P.2d 736, 739)

¶25 As a reviewing court, we too must look solely to the information given to the
impartial magistrate and to the four corners of the search warrant application. See
Crowder, 248 Mont. at 173, 810 P.2d at 302 (citing Sundberg, 235 Mont. at 121, 765 P.2d
at 740). We have often stated, however, that in so doing we must refuse to review a search
warrant application sentence by sentence; rather, we must examine the entire affidavit to
determine whether the issuing magistrate had a substantial basis to conclude that probable
cause existed. State v. Hulbert (1994), 265 Mont. 317, 323, 877 P.2d 25, 29 (citation
omitted).

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (6 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

¶26 By no means is the issue raised here novel. Yet, as evidenced by the parties' briefs as
well as their oral arguments before this Court, our case law as a whole creates an
appearance of convolution. The cases cited by both parties reveal a broad spectrum of
factual scenarios where information is provided by "anonymous" informants who have
personally witnessed criminal activity and "confidential" informants who have not, but
are nevertheless deemed "reliable"-- or vice versa. Often "concerned citizens" offer
information regarding what they have seen or heard regarding actual criminal activity, or
merely what they regard as suspicious activity. At the receiving end of such information
are law enforcement officers who may choose to follow up on these tips and interviews,
utilizing a variety of investigatory tools. Eventually, the "totality" of the gathered
information may be drafted into an application for a search warrant, and, at some point, a
threshold is crossed: the independent magistrate, based on the information contained
within the four corners of the application determines that, yes, probable cause exists and a
citizen's person or property may be searched by law enforcement officers.

¶27 Upon closer review, however, a synthesis of our case law chalks a fairly uniform
equation for determining whether an informant's statements, without further law
enforcement corroboration or investigation, are sufficient to establish probable cause.
True, we must observe the underlying principle of the Gates test, that this "totality of the
circumstances approach" by design resists "any rigid demand that specific tests be
satisfied by every informant's tip." State v. Kelly (1983), 205 Mont. 417, 439, 668 P.2d
1032, 1044 (quoting from Illinois v. Gates) (emphasis added). Nevertheless, based on 17
years of precedent laid down by this Court since we adopted the Gates test in Kelly and
State v. O'Neill (1984), 208 Mont. 386, 679 P.2d 760, certain indelible threshold rules
have emerged. In turn, these rules may be merged into a fairly coherent step-by-step
analysis for determining whether an informant's information is sufficient to establish
probable cause.

A. The anonymous informant

¶28 First, a threshold question may be asked: is the informant anonymous? This means that law
enforcement officers have no idea who is providing the information. A phoned-in Crimestoppers "tip" is
one frequent, common example. If the answer is yes, then independent corroboration of the informant's
information is required. This Court has routinely stated that "[c]orroboration of an informant's
information through other sources is necessary when the information is hearsay or the informant is
anonymous." State v. Rinehart (1993), 262 Mont. 204, 211-12, 864 P.2d 1219, 1223-24
(concluding that an "anonymous Crimestoppers' tip, by itself, is not adequate to support
probable cause without further investigation to verify or corroborate the information

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (7 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

contained in the tip," and citing State v. Valley (1992), 252 Mont. 489, 493, 830 P.2d
(1)
1255, 1257).

B. Personal observation

¶29 f the informant is not anonymous, we may then proceed to a second threshold
question: is the informant's information based on his or her personal observation of the
described criminal activity? In other words, is the basis of the information hearsay? See
Rinehart, 262 Mont. at 212, 864 P.2d at 1224 (stating that an "informant's personal
observation of criminal activity does not constitute hearsay evidence"); State v. Kaluza
(1995), 272 Mont. 404, 411, 901 P.2d 107, 111 (concluding that informants' information
in warrant application contained no reference to personal observation or personal
knowledge, and was therefore of "no value"). See also State v. Wilson (1992), 254 Mont.
317, 319, 837 P.2d 1346, 1347 (concluding that "bare assertion" of personal observation
of marijuana growing in defendant's house failed to sufficiently describe the interior of
the house and the location of the marijuana growing operation).

¶30 If the answer is no, then again independent corroboration is required.

C. Reliability

¶31 If the information of actual criminal activity was gleaned from the personal
observations of a non-anonymous person, then we may proceed to a final threshold
question: is the informant a reliable source of such information? This question, in turn,
breaks down into three clearly identifiable scenarios within our search and seizure
jurisprudence.

1. The confidential informant

¶32 If an informant is identified in a law enforcement officer's application for a search
warrant as a "confidential informant," he or she must have provided reliable and accurate
information to officers in the past in order for the information to serve as a basis for
determining probable cause without further corroboration. This Court has held that a
"sworn statement [by a law officer] that an informant has been reliable and provided
accurate information on other occasions is sufficient to establish that the informant is
reliable." Kaluza, 272 Mont. at 410, 901 P.2d at 111 (citations omitted). See also
Rinehart , 262 Mont. at 212, 864 P.2d at 1223-24 (concluding that a search warrant

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (8 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

application provided a substantial basis to conclude probable cause existed to issue the
search warrant based on officer's statement that informant was reliable in the past); State
v. Walston (1989), 236 Mont. 218, 223, 768 P.2d 1387, 1390 (determining that
"information of a criminal activity known from observation by a previously reliable
informant . . . is sufficient to establish the probability of criminal activity without outside
investigation and verification of the reported information").

2. The admission against interest

¶33 Alternatively, if the informant makes an unequivocal admission against interest, this
Court has likewise held that further corroboration is unnecessary. See State v. Adams
(1997), 284 Mont. 25, 37, 943 P.2d 955, 962 (concluding that admissions against interest
regarding participation in setting up a marijuana growing operation, "without any further
corroboration," provided the district court with a substantial basis for concluding that
probable cause supported the search warrant). See also State v. Sundberg (1988), 235
Mont. 115, 121, 765 P.2d 736, 740 (quoting from United States v. Harris (1971), 403 U.
S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, that "[a]dmissions 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").

3. The concerned citizen.

¶34 Finally, if the informant was motivated by "good citizenship" and the information
provided demonstrates a sufficient degree of the nature of the circumstances under which
the incriminating information became known, then the informant's disclosures are deemed
a reliable basis for determining probable cause. This Court has stated that a citizen
informant is presumed reliable and such reliability "is generally shown by the very nature
of the circumstances under which the incriminating information became known." State v.
Valley (1992), 252 Mont. 489, 493, 830 P.2d 1255, 1258 (citing State v. Niehaus (Iowa
1990), 452 N.W.2d 184, 189). See also State v. Worrall, 1999 MT 55, ¶¶ 20-21, 293
Mont. 439, ¶¶ 20-21, 976 P.2d 968, ¶¶ 20-21 (concluding that child witness was reliable
in providing information of discovering marijuana growing on defendant's property while
snake hunting); State v. Oleson, 1998 MT 130, ¶ 14, 289 Mont. 139, ¶ 14, 959 P.2d 503, ¶
14 (stating that information motivated by good citizenship is accepted as reliable for
purposes of determining probable cause to issue a search warrant).

¶35 If the ultimate answer under the foregoing examinations of reliability is no--that the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (9 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

informant is not a reliable source of such information--then once again independent police
corroboration is required. If the answer to the question of reliability is yes, then based on
the informant's information alone, without corroboration, an application for a search
warrant may supply the magistrate with a substantial basis for finding probable cause and,
consequently, issuing the search warrant. See Walston, 236 Mont. at 223, 768 P.2d at
1390.

¶36 Naturally, the foregoing analysis does not bar a defendant from challenging the
warrant on other grounds, such as staleness or the inclusion of incorrect or misleading
information in the application for a warrant. Likewise, a defendant may challenge whether
the law enforcement officer's independent corroboration or investigation was sufficient
within the context of a court's totality of the circumstances analysis. Such corollary
grounds, however, are not at issue here.

¶37 In this instance, the confidential informant was not "anonymous," in that she met face-
to-face with Detective Hanson, and was subjected to his questioning. Next, her
observations, no doubt, were based on personal observations. She stated that she visited
the trailer home in question, met with Hogge, and viewed first-hand the marijuana
growing in a bedroom closet, describing the trailer home and its interior with sufficient
particularity. Thus, the first two threshold steps are clearly satisfied.

¶38 At step three, however, the application for a search warrant did not indicate that as a
"confidential informant," the person was known by law enforcement personnel to have
been reliable and a source of accurate information in the past, prior to her meeting with
Detective Hanson on November 28, 1995. How she became classified by Gallatin County
Sheriff's officers as "Confidential Informant (CI) 95-1128" remains a mystery
(disregarding, as we must, suppression hearing testimony that provides information
beyond the "four corners" of the application originally viewed by the issuing magistrate in
this instance). Next, the application did not indicate that the statements were an admission
against interest by a co-conspirator or a customer of illegal drugs. Finally, the application
simply does not indicate first, that the person was acting as a "concerned citizen," and
second, and more importantly, under what circumstances the informant went to and
entered the trailer that day and subsequently was shown the incriminating information she
later shared with Detective Hanson. Was she there to clean the carpet? Collect rent?
Purchase a gram or two of the fresh harvest? Was she acting under law enforcement
direction? Why did Hogge so willingly show her his illegal operation? We do not know,
and, accordingly, neither did the reviewing magistrate.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (10 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

¶39 We hold, therefore, that without further, independent corroboration or investigation,
the confidential informant's information found within the search warrant application here
must fail as supplying the magistrate with the substantial basis necessary for the
determination that probable cause existed.

D. Independent corroboration

¶40 The State nevertheless argues that independent corroboration or investigation of the
confidential informant's information was supplied to the magistrate in Detective Hanson's
application by an "anonymous citizen, who has provided reliable information in the past."
At oral argument, the State asserted that under our decisions in Rydberg, Oleson, and
Deskins, this Court has a sufficient basis to validate the probable cause showing here. The
State further contends that there is "nothing in the [Deskins] opinion which suggests that a
tip from a citizen informant whose reliability is known to officers cannot serve to
corroborate information from a confidential informant unless there is independent
corroboration of the citizen's tip as well."

¶41 Indeed, we stated in Deskins that "[p]ersonal observation of criminal activity by an
informant whose reliability can be established provides probable cause." State v. Deskins
(1990), 245 Mont. 158, 163, 799 P.2d 1070, 1073 (emphasis added). Contrary to the
State's argument, however, the corroborating information in Deskins was not supplied by
another, uncorroborated source of information, but from the independent investigation of
a detective. In that case, an anonymous informant supplied investigators with detailed
first-hand information of a marijuana growing operation. In turn, officers independently
verified that Deskins resided at the home identified by the caller, and proceeded to gather
evidence of power consumption records, a synopsis of which was contained in the warrant
application. See Deskins, 245 Mont. at 162, 799 P.2d at 1072.

¶42 The same factual scenario is present in Rydberg and Oleson. In both instances,
officers took independent action to further corroborate information supplied by the
informants. See State v. Rydberg (1989), 239 Mont. 70, 73, 778 P.2d 902, 904 (criminal
background checks); Oleson, ¶ 10 (vehicle registration and criminal scene investigation).

¶43 As a underlying general rule, further independent corroboration or investigation by
law enforcement personnel is the panacea for most warrant applications where
information is supplied by an informant. In State v. Walston, we identified this key
element expressed in Gates, where the United States Supreme Court determined that an

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (11 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

anonymous letter combined with other police findings established probable cause. We
recognized the Gates Court's observation that the subsequent investigation conducted by
law enforcement personnel verified the facts stated by the informant, which in turn
justified the issuing magistrate's conclusion that a probability of criminal activity existed.
See Walston, 236 Mont. at 222, 768 P.2d at 1389-90. See also Deskins, 245 Mont. at 159-
60, 799 P.2d at 1071 (anonymous tip corroborated by extensive police investigation);
Crowder, 248 Mont. at 174, 810 P.2d at 302 (concluding that although information in
warrant application combined with officer's investigation was "less complete than would
be desirable," it nevertheless served as a sufficient basis for probability that contraband
would be found at residence).

¶44 In this sense, "corroboration" or "further investigation" as used throughout the
foregoing case law--contrary to the State's argument here--infers independent police work
of some kind. See Crowder, 248 Mont. at 173, 810 P.2d at 302 (quoting Gates, 462 U.S.
at 241-42, 103 S.Ct. at 2334, 76 L.Ed.2d at 550, and stating that "[t]he United States
Supreme Court emphasized the 'value of corroboration of details of an informant's tip by
independent police work' establishing a 'substantial basis for crediting the hearsay'")
(emphasis added). See also Valley, 252 Mont. at 493, 830 P.2d at 1257 (stating that
"common sense" dictates further law enforcement investigation to verify or corroborate
the tips received from informants).

¶45 In fact, our case law offers numerous successful examples of such corroboration or
further investigation that established the sufficiency of an informant's information. For
example, in Deskins the officers through various sources including an investigative
subpoena verified home ownership, a business licence, vehicle registration, and utility
records indicating increased power consumption after receiving an anonymous tip of a
marijuana growing operation. Deskins, 245 Mont. at 159-60, 799 P.2d at 1071. Officers
have also included in their warrant applications rental information which they have
independently verified. See Adams, 284 Mont. at 30, 943 P.2d at 958. Numerous cases
discuss warrant applications that describe a variety of investigatory drive-bys and visits to
a residence to confirm addresses, house descriptions, and other information supplied by
informants. See, e.g., State v. Holstine (1993), 260 Mont. 310, 312-13, 860 P.2d 110, 111-
12 (officer observes covered window and smells growing marijuana from outside of
trailer home); State v. Hook (1992), 255 Mont. 2, 3, 839 P.2d 1274, 1275 (officer
confirms address and drives by house to confirm description of exterior); Kuneff, ¶ 7
(officers admitted into home and observe paraphernalia). Similarly, in some instances,
officers have investigated the scene of an alleged crime, and gathered evidence that

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (12 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

verifies the informant's information. See Oleson, ¶ 10. Another routine piece of
information indicating police corroboration is criminal background checks. See, e.g., State
v. Mosley (1993), 260 Mont. 109, 114, 860 P.2d 69, 72; Rydberg, 239 Mont. at 73, 778
P.2d at 904. Characteristically, none of these acts of independent law enforcement
corroboration or investigation require further corroboration by an officer. But see Kaluza,
272 Mont. at 411, 901 P.2d at 111 (determining that power usage information gathered by
police that lacked "detailed comparisons" with average and previous resident's usage was
insufficient); Wilson, 254 Mont. at 319, 837 P.2d at 1347 (information about power usage
in search warrant application was conclusory). Further, although under our decision in
Rinehart a Crimestoppers tip may provide some corroboration and indicate the veracity of
other information provided, an anonymous source as well as hearsay information
nevertheless requires further corroboration. See Rinehart, 262 Mont. at 212, 864 P.2d at
1224.

¶46 The State concedes that the statements of the confidential informant in the search
warrant application here "needed to be independently corroborated." The State then
attempts to supplant actual law enforcement officers' corroboration with information from
an anonymous citizen who, uncannily, "provided reliable information in the past."
Notwithstanding this obvious contradiction, we hold that a source of information that
requires further corroboration under the analysis set forth here cannot serve as a source of
independent corroboration or investigation that transforms another informant's
information into a basis for establishing probable case. As our case law makes clear, an
anonymous source always requires corroboration. See Worrall, ¶ 22.

¶47 Finally, the reference to the "anonymous citizen" in the application provides no
indicia of reliability of a citizen informant in terms of personal observation, or the
circumstances under which the person made his or her personal observations. Thus, even
ignoring the "anonymous" status of the citizen informant, the inclusion of this piece of
information offers no corroboration value to the warrant application as a whole.

¶48 Accordingly, we conclude that the application for a search warrant did not provide a
substantial basis for the conclusion that probable cause existed for the search of the Big
Sky trailer home in which Reesman resided. We hold, therefore, that the District Court
erred in denying Reesman's motion to suppress evidence obtained during the execution of
the search warrant. Reversed and remanded for further proceedings consistent with this
opinion.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (13 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

/S/ JAMES C. NELSON

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

Justice Jim Regnier concurring.

¶49 I concur that the search warrant application in this case was insufficient in that it did
not provide a substantial basis for the conclusion that probable cause existed to search the
trailer home in which Reesman resided. However, I disagree with the Court's reasoning.
In my view the Court's conclusion that corroboration must be accomplished through
"police investigation" is too restrictive. I would conclude that the confidential informant's
report was not sufficiently corroborated by the tip from the anonymous citizen because
the circumstances provided by Detective Hanson concerning who provided the tip and
how the tip was acquired were too conclusory for a magistrate to independently review.

1. Confidential Informant's Report

¶50 I agree with the Court's conclusion that the information provided by the confidential
informant was insufficient, standing alone, to justify the issuance of a search warrant. In
analyzing the sufficiency of a search warrant application, we have previously stated:

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 Illinois v. Gates (1983),
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. 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 [the magistrate], including the
"veracity" 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. [T]he duty of the reviewing court is to ensure the magistrate had a
"substantial basis" for . . . conclud[ing] that probable cause existed.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (14 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

State v. Wilson (1992), 254 Mont. 317, 318-19, 837 P.2d 1346, 1347 (citations omitted).

¶51 The first source of Detective Hanson's information was referred to as "Confidential
Informant 95-1128." Detective Hanson stated that he conducted an interview with this
confidential informant who advised Detective Hanson that the confidential informant had
visited the trailer home in which Reesman resided and had observed marijuana plants
growing in a bedroom closet, drying marijuana "buds," and Styrofoam cups containing
"psilocybin mushrooms."

¶52 Detective Hanson provided sufficient information in the search warrant application
for the reviewing judge to determine that the confidential informant's report, if honest,
was likely to be true because the informant's knowledge was based on the informant's
personal observations of criminal activity. See State v. Rinehart (1993), 262 Mont. 204,
213, 864 P.2d 1219, 1224. If an informant's report purports to be based on personal
observation of criminal activity, further analysis centers not on the accuracy of the report,
but on the honesty or veracity of the informant. See Rinehart, 262 Mont. at 213, 864 P.2d
at 1224 (holding that a previously reliable informant's report of criminal activity which
was based on personal observation was sufficient to establish probable cause to issue a
search warrant).

¶53 Under the "veracity" test, facts must be brought to the judicial official's attention so
that the judge can independently determine the inherent credibility of the informant, see, e.
g., State v. Kaluza (1995), 272 Mont. 404, 410, 901 P.2d 107, 111 (stating that an officer's
sworn statement that an informant has been reliable and provided accurate information on
other occasions is sufficient to establish veracity); or facts must be brought to the judicial
official's attention so that the judge can independently determine the reliability of the
informant's information on this particular occasion, see State v. Adams (1997), 284 Mont.
25, 36, 943 P.2d 955, 961 (observing that "[a]dmissions of crime, like admissions against
proprietary interests, carry their own indicia of credibility"); State v. Worrall, 1999 MT
55, ¶ 20, 293 Mont. 439, ¶ 20, 976 P.2d 968, ¶ 20 (stating that "information provided to
the police that is motivated by good citizenship is a reliable basis for determining
probable cause").

¶54 Detective Hanson provided absolutely no information regarding the confidential
informant's veracity. Detective Hanson did not indicate that the confidential informant
was inherently credible because the informant had a proven track record of providing

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (15 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

reliable information in the past. Alternatively, Detective Hanson did not indicate that
although the confidential informant did not have a proven track record of providing
reliable information, the confidential informant's report was likely to be particularly
reliable on this occasion because, for instance, it was an admission against the informant's
interest, or circumstances indicated that the report was motivated by good citizenship.

¶55 Accordingly, I agree with the majority's conclusion that the confidential informant's
report, standing alone, did not provide a sufficient basis for the issuance of a search
warrant.

2. Corroboration by "Anonymous Citizen"

a. Court's approach: "independent police work"

¶56 As the Court correctly frames it, the issue then becomes whether the confidential
informant's report was independently corroborated such that, despite its inadequacy, it
could still form part of the basis for the issuance of a search warrant. The only
corroboration of the confidential informant's report was contained in the following
statement: "An anonymous citizen, who has provided reliable information in the past,
stated that the marijuana grow has been in existence for approximately one year."

¶57 The Court concludes that this corroboration is deficient for two reasons. First, the
corroboration was insufficient because it did not provide an independent basis for a
determination of probable cause. See Court's opinion at ¶ 46 (stating that "we hold that a
source of information that requires further corroboration . . . cannot serve as a source of
independent corroboration"). Second, the corroboration was insufficient because it was
not the result of "police investigation." Court's opinion at ¶¶ 41-45. Pursuant to the
Court's opinion, the only corroboration that can serve to cure the inadequacies of an
informant's report is corroboration through "independent investigation" by law
enforcement personnel. See Court's opinion at ¶ 43. In effect, the Court's conclusion
means that an application for a warrant that contains information from an informant can
only be sufficient under two factual scenarios: either (1) the informant's report provides a
sufficient basis for a determination of probable cause and therefore does not require any
further corroboration; or (2) an informant's report is insufficient but is "corroborated" by
"police investigation."

¶58 In my view, corroboration by "police investigation" is certainly a reliable method of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (16 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

corroboration, however, corroboration could be accomplished by other means as well.
More importantly, however, I fear this requirement diverts the judicial officer's attention
from the more important question which, on the facts of the instant case, is whether
Detective Hanson presented sufficient information for the judge to accredit the
confidential informant's report.

¶59 Significantly, as with all bright line tests, the majority's line is not as bright as it first
appears. It is not clear what independent police corroboration is. For example, had
Detective Hanson simply alleged "I called an anonymous citizen . . . " would the addition
of those three words turn the corroboration in this case into "police work" sufficient to
justify the issuance of a warrant? If so, why? What purpose does this distinction serve in
the probable cause analysis? Although I agree with the majority that in most
circumstances it will take independent police work to corroborate an informant's report
that does not provide a sufficient basis for a determination of probable cause on its own, I
believe that resolving these disputes based on simple factual characterization concerning
how the corroborative information was acquired distracts law enforcement, judges, and
reviewing courts from the purpose behind the warrant requirement.

b. Analysis of concurrence

¶60 The corroboration of the confidential informant's report was that "[a]n anonymous
citizen, who has provided reliable information in the past, stated that the marijuana grow
has been in existence for approximately one year."

¶61 Detective Hanson characterized the source of this knowledge as an "anonymous
citizen." The use of the term "anonymous" implies that the source was unknown to
Detective Hanson. The use of the word "citizen" implies that the source was motivated by
good citizenship. See Worrall, ¶ 20 (observing that "information provided to the police
that is motivated by good citizenship is a reliable basis for determining probable cause").
However, the phrase "who has provided reliable information in the past" belies both of the
aforementioned assumptions. From this phrase, it becomes clear that Detective Hanson
was alleging that he knew the source's identity because the source had provided him with
information in the past, but was keeping the source's identity confidential. Furthermore, it
is evident that the source was not simply a "citizen," but rather was a person who had
ongoing access to information about unlawful activities. Detective Hanson did not
provide any circumstances regarding how he acquired the information from the
"anonymous citizen" nor did he provide any circumstances which might indicate how the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (17 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

"anonymous citizen" learned of the "marijuana grow" operation. Lastly, the only relevant
information Detective Hanson provided concerning the "anonymous citizen" was
Detective Hanson's characterization of the "anonymous citizen's" reliability.

¶62 I would conclude that this corroboration is insufficient to cure the inadequacy of the
confidential informant's report because it is simply too conclusory. A judge would have to
take too many leaps of faith in order to conclude that the "anonymous citizen's" report
was corroborative of the confidential informant's report. The search warrant in the present
case does not detail any of the underlying circumstances of the "anonymous citizen's"
report and provides only the slightest reason for crediting this report (Detective Hanson's
characterization of the "anonymous citizen's" previous reliability). I agree with the Court
that the addition of this purely conclusory report adds absolutely nothing to the search
warrant. However, this is not because it was, or was not, acquired by independent police
work, but rather because there is no reason to believe that it in fact corroborated the
confidential informant's report. The precise problem is that this "corroboration" is nothing
more than a collection of bare assertions. As we previously stated in Wilson, "Detail was
not provided to support the conclusions drawn within the application. Conclusory
statements will not provide substantial basis to conclude that probable cause existed to
issue a search warrant." 254 Mont. at 319-20, 837 P.2d at 1348.

¶63 I recognize that reviewing courts should refrain from being hypertechnical when
reviewing the legality of a search warrant. We have previously stated:

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 warrants. Reviewing courts should avoid hyper- technical interpretations of
warrant applications and, in doubtful or marginal cases, resolve the issue with the
preference for warrants in mind.

Rinehart, 262 Mont. at 210-11, 864 P.2d at 1223 (citing State v. O'Neill (1984) 208 Mont.
386, 679 P.2d 760).

¶64 The source of this oft-repeated language is United States v. Ventresca (1965), 380 U.
S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684. O'Neill, 208 Mont. at 393, 679 P.2d at 764.
Interestingly, the next paragraph in Ventresca, which we have neglected to repeat, states:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (18 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

This is not to say that probable cause can be made out by affidavits which are
purely conclusory, stating only the affiant's or an informer's belief that probable
cause exists without detailing any of the "underlying circumstances" upon which
that belief is based. Recital of some of the underlying circumstances in the affidavit
is essential if the magistrate is to perform [the magistrate] detached function and not
serve merely as a rubber stamp for the police. However, where these circumstances
are detailed, where reason for crediting the source of the information is given, and
when a magistrate has found probable cause, the courts should not invalidate the
warrant by interpreting the affidavit in a hyper technical, rather than a common
sense, manner. Although in a particular case it may not be easy to determine when
an affidavit demonstrates the existence of probable cause, the resolution of doubtful
or marginal cases in this area should be largely determined by the preference to be
accorded to warrants.

Ventresca, 380 U.S. at 108, 85 S. Ct. at 746 (citations omitted).

¶65 The Supreme Court's exhortation to resolve questionable cases in favor of upholding
warrants is much more subtle and sophisticated than we have previously implied. I would
interpret the forgoing to mean that when an affidavit is not purely conclusory, but rather
details the underlying circumstances and supplies some reason for crediting the source of
the information, a reviewing court should resolve a doubtful case with a preference for
upholding the warrant. In the instant case, the confidential informant's report was
insufficient because the search warrant application provided no evidence of the
confidential informant's veracity. Additionally, the "anonymous citizen's" report was not
corroborative because it was merely a collection of bare assertions and thus could not
supply an independent reason for crediting the confidential informant's report. However,
this is not to imply, as the Court does, that information not acquired through "independent
police investigation" can never corroborate an insufficient informant's report unless it
provides a sufficient basis on its own to support probable cause. See Court's Op. at ¶ 46. It
is conceivable that had Detective Hanson provided some of the underlying circumstances
surrounding the "anonymous citizen's" report, there may have been a substantial basis for
the judge reviewing the application to conclude that there was a fair probability that
contraband or evidence of a crime would be found in the trailer home.

¶66 In short, for the benefit of law enforcement, I recommend the following advice: A
sufficient warrant application should always detail both how the officer acquired the
information giving rise to probable cause, and, if the officer is relying on an informant,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (19 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

how the informant acquired his or her knowledge and circumstances which would
indicate that the informant's report is worth crediting. For instance, as noted by the
majority, Detective Hanson could have indicated how the confidential informant
happened to be in the trailer home and this may have provided the judge with grounds for
crediting the veracity of the confidential informant's report. See 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 3.3(f) at 172, (3d ed. 1996)
("[A]nother situation in which the corroboration will suffice to show veracity is that in
which the informant has not been working independently, but rather has cooperated
closely with the police."). Regarding the "anonymous citizen's" report, Detective Hanson
could have described the circumstances surrounding how he received the report from the
"anonymous citizen," how he knew the "anonymous citizen," why he believed the
"anonymous citizen" was credible, and how the "anonymous citizen" acquired his or her
knowledge.

¶67 For the foregoing reasons, I concur that the warrant application was insufficient. To
conclude otherwise would be to render the constitutional search warrant requirement a
mere formality. The corroboration of the confidential informant's report by the tip from
the "anonymous citizen" was simply too conclusory to allow a judge to independently
determine the existence of probable cause to justify the issuance of a warrant.

/S/ JIM REGNIER

Justice Karla M. Gray joins in the foregoing concurrence.

/S/ KARLA M. GRAY

(2)
¶68 Implicit in the concurring and dissenting opinions are two notions: first, that the
majority opinion has broken new ground or in some measure strayed from the principles
set forth in Illinois v. Gates and subsequent Montana decisions; and, second that, in doing
so, the majority has imposed an additional burden on law enforcement by creating yet
another technical "hoop" for police officers to jump through in their efforts to ferret out
crime and apprehend the guilty through the use of informants. Both conclusions are
incorrect.

¶69 Nevertheless, given the hostile knee-jerk reaction that typically attends the issuance
of court opinions that are perceived--whether wrongly or rightly--as either making life
more difficult for the police or enforcing (much less enlarging) the constitutional rights of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (20 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

persons accused of crimes, a response to the concurring opinion is necessary.

¶70 Although agreeing with the majority opinion that the search warrant application in
this instance was insufficient, the concurring opinion suggests that the corroboration of
information supplied by an unreliable source may be accomplished by means other than
further police investigation. No authority is cited for this novel proposition. This, of
course, begs the question, "What other means are envisioned?" The concurrence never
says.

¶71 As indicated in the majority opinion, further police investigation of an otherwise
unreliable source of information is the heart and soul of the U.S. Supreme Court's
decision in Illinois v. Gates, which this Court has followed since 1984. The U.S. Supreme
Court stated that "[o]ur decisions applying the totality of the circumstances analysis
outlined above have consistently recognized the value of corroboration of details of an
informant's tip by independent police work." Gates, 462 U.S. at 241, 103 S.Ct. at 2334
(emphasis added). The Court then discussed the "classic case on the value of
corroborative efforts of police officials." Gates, 462 U.S. at 242-43, 103 S.Ct. at 2334
(discussing Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327)
(emphasis added). The Court also provided a detailed summary of detective Mader's
corroborating efforts after receiving the anonymous letter that sparked the investigation of
the Gates' drug selling operation: he sought driver's licence information, he confirmed the
Gates' address, he conferred with another police officer and confirmed airline flight
information, and he contacted Drug Enforcement Administration agents and arranged for
a surveillance operation that gathered further corroborating information.

¶72 It was the recognition of these independent sources of information uncovered by
further police efforts that led to the Court's reversal of the Illinois Supreme Court's
decision, which had determined that Mader's search warrant application was defective due
to the lack of reliability of the original informant's anonymous letter. Thus, an informant's
letter that the Court recognized "standing alone . . . would not provide the basis for a
magistrate's determination that there was probable cause to believe contraband would be
found in the Gates' car and home" had been "corroborated in major part by Mader's
efforts." Gates, 462 U.S. at 227, 243, 103 S.Ct. at 2326, 2335. The Court further provided:

The Supreme Court of Illinois reasoned that Draper involved an informant who had
given reliable information on previous occasions, while the honesty and reliability
of the anonymous informant in this case were unknown to the Bloomingdale police.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (21 of 24)3/30/2007 10:45:33 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

While this distinction might be an apt one at the time the police department
received the anonymous letter, it became far less significant after Mader's
independent investigative work occurred.

Gates, 462 U.S. at 243-44, 103 S.Ct. at 2335 (emphasis added).

¶73 Thus, under Gates, once officers receive information of illegal activities from sources
that do not establish probable cause "standing alone," such information may nevertheless
serve as a basis for establishing probable cause if the officers subsequently corroborate
the information through independent investigation. As made plain in the majority opinion,
there is no prescribed limit as to what independent resources--including the use of other
informants--an officer might use for this corroboration. See majority opinion, at ¶ 45.

¶74 Rather, the majority opinion carefully maps Montana case law, dividing information
supplied by informants into two distinct categories: that which may stand alone for a
probable cause determination, and that which requires further police investigation. In this
instance, the information supplied by both the confidential informant and the anonymous
citizen, standing alone, clearly falls into the latter category, and therefore each required
further "corroboration through other sources of information." Gates, 462 U.S. at 244, 103
S.Ct. at 2335 (emphasis added). Further, it is patently unclear from the warrant
application at issue whether the information supplied by the "anonymous citizen" was, in
fact, gathered for the purpose of corroborating the confidential informant's information.
Thus, this tip may have in fact been received prior to the confidential informant's
November 1995 meeting with Detective Hanson, which, if true, emphasizes the lack of
further investigation by officers in this case.

¶75 It is unclear, therefore, why the concurrence chooses to belabor under what
circumstances the information supplied by one unreliable source could, conceivably,
corroborate another unreliable source without "further police investigation," and yet still
establish probable cause.

¶76 The underlying fallibility of the concurrence's reasoning on this point is revealed by
the lengths to which it would be necessary for Detective Hanson to cure the defects of the
"anonymous citizen," as a corroborating source of information. According to the
concurring opinion, it is conceivable that had Detective Hanson provided some of the
underlying circumstances surrounding the anonymous citizen's report, "there may have
been a substantial basis for the judge reviewing the application to conclude that there was

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (22 of 24)3/30/2007 10:45:34 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

a fair probability that contraband or evidence of a crime would be found in the trailer
home." According to the concurrence, Detective Hanson should have (1) described the
circumstances surrounding how he received the report from the anonymous citizen, (2)
how he knew the anonymous citizen, (3) why he believed the anonymous citizen was
credible, and (4) how the anonymous citizen acquired his or her knowledge. See
concurring opinion, at ¶ 66. Consequently, the inclusion of this information could have
corroborated the information supplied by the confidential informant, and led to a proper
probable cause determination--again, without further investigation by officers.

¶77 Accordingly, Detective Hanson could have attested in the warrant application (1) that
he received a crime-stopper tip by phone; (2) that the person chose to identify him or
herself, and that, in turn, he knew the person; (3) that the person had provided reliable and
accurate information in the past; and (4) that the person had personally observed the grow
operation during the course of the past year. The concurrence finds this process--which
does not appear to involve "further investigation"--satisfactory to corroborate the
confidential informant's information. And there is a good reason why. This is precisely
the process outlined in the majority opinion.

¶78 First, the person is not anonymous. Second, the source personally observed the illegal
activity. And third, the informant has provided reliable and accurate information in the
past. If this had been the factual circumstances, as the concurring opinion suggests, the
issue of "independent investigation" would be irrelevant, because none would be required.
Alternatively, at the risk of rehashing that which has already been made clear, under
Montana case law if the person remained anonymous, further corroboration would have
been required; if the source had not personally observed the illegal activity, further
corroboration would have been required; and finally if the informant had not provided
reliable and accurate information in the past, or was not a "concerned citizen," further
corroboration would have been required.

¶79 Thus, it remains unclear how the information provided by either the confidential
informant or the anonymous citizen in this instance could have been cured for the purpose
of establishing probable cause by anything short of further police investigation, using
other sources of information.

/S/ JAMES C. NELSON

Justice W. William Leaphart joins in the foregoing response to the concurring and

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (23 of 24)3/30/2007 10:45:34 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm

dissenting opinions.

/S/ W. WILLIAM LEAPHART

Chief Justice J. A. Turnage, dissenting.

¶80 I respectfully dissent from that portion of the majority opinion at ¶¶ 41-45,
concluding that corroboration for a search warrant can only be sufficient if it is the result
of "police investigation." As stated in Justice Regnier's concurring opinion, "[p]ursuant to
the Court's opinion, the only corroboration that can serve to cure the inadequacies of an
informant's report is corroboration through 'independent investigation' by law
enforcement personnel." This requirement is too restrictive. Certainly corroboration can
be obtained in many ways other than "independent police investigation." For that reason, I
dissent from the majority opinion.

¶81 The well-reasoned discussion concerning other aspects of the inadequacies of the
warrant application in Justice Regnier's concurring opinion I believe to be correct, and,
therefore, I join in that part of the concurring opinion.

/S/ J. A. TURNAGE

1. We note that this rule as it appears in more recent case law includes the term "only," meaning that
only when an informant is anonymous or provides hearsay must further corroboration be
supplied by law enforcement officers. See State v. Worrall, 1999 MT 55, ¶ 22, 293 Mont.
439, ¶ 22, 976 P.2d 968, ¶ 22 (citing State v. Adams (1997), 284 Mont. 25, 37, 943 P.2d
955, 962, which cites to State v. Rinehart (1993), 262 Mont. 204, 212, 864 P.2d 1219,
1224). As the following discussion indicates, the inclusion of this term misconstrues the
rule as it originally appeared in Rinehart. We observe, therefore, that under Worrall,
Adams, and Rinehart, further corroboration is always required when an informant is
anonymous or provides mere hearsay, and yet further corroboration may be required in
other instances as well.

2. For purposes of this separate opinion I will treat the dissenting opinion as being included within the
concurring opinion as the former sets out no rationale independent of the latter.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-142%20Opinion.htm (24 of 24)3/30/2007 10:45:34 AM