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No. 99-334
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 250
STATE OF MONTANA,
Plaintiff/Respondent,
v.
DUANE DAVID GRAY,
Defendant/Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jack H. Morris, Jardine & Morris, Whitehall, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Robert M. McCarthy, Silver Bow County Attorney; Brad Newman,
Deputy County Attorney, Butte, Montana
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Submitted on Briefs: June 21, 2001
Decided: December 6, 2001 Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Duane David Gray appeals from an order issued by the Second Judicial District Court,
Silver Bow County, which denied his motion to suppress evidence seized pursuant to a
search warrant. We affirm.
¶2 The sole issue raised on appeal is whether the District Court erred in determining there
was sufficient probable cause to support the issuance of a search warrant.
BACKGROUND
¶3 In November 1997 a confidential informant ("CI") contacted Detective Jerry Stradinger
of the Butte-Silver Bow Law Enforcement Agency to report a suspected marijuana "grow"
operation. Stradinger noted that CI had previously provided law enforcement officers with
reliable information.
¶4 CI told Stradinger that Duane Gray was conducting the alleged operation at 1741 Grand
Avenue in Butte, Montana. According to CI, her live-in companion, Troy Wallace, built a
room in the upper portion of the Grand residence to facilitate Gray's grow operation.
Construction on the grow room had allegedly been completed within the last three months.
CI indicated that the room was partitioned to accommodate varying stages of marijuana
plant growth and, to gain access, one must locate a concealed button or latch. CI stated
that she had no personal knowledge of the operation but learned all of this information
from Wallace. However, CI did inform Stradinger that she had seen marijuana buds and
leaves which Gray purportedly produced in his grow operation. Stradinger noted that
Wallace had a history of drug related offenses.
¶5 Based on CI's allegations, law enforcement officers surveyed the Grand residence's
exterior. This survey confirmed CI's description of the property. Officers observed what
they believed to be four new air vents and a new chimney on the roof. Based on their
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experience, the officers believed these vents were consistent with the ventilation
requirements of grow operations. Utility and law enforcement records established that
Gray did in fact reside at the Grand residence. The officers also observed Gray's brother, a
known drug user, frequent the residence.
¶6 After obtaining an investigative subpoena, the officers examined the Grand residence's
utility records. A Montana Power Company representative advised the officers of an
unusual surge in electrical power usage at the property in October 1997. The residence's
power records indicated a relatively constant power consumption from June 1997 to
September 1997. However, the power consumption increased by 376 kilowatt hours in
October 1997. Again, based on their experience, the officers felt this October power
consumption was consistent with the power demands of a grow operation.
¶7 With this information, on November 19, 1997, Stradinger applied for and obtained a
search warrant for the Grand residence. A search of the residence revealed 77 marijuana
plants, marijuana growing equipment, and drug paraphernalia. The search confirmed
some, but not all, of the information CI disclosed to Stradinger about the residence. Based
on the search results, Stradinger arrested Gray. Gray was subsequently charged by
information with one count of criminal production or manufacture of dangerous drugs
(Count I), one count of criminal possession of drug paraphernalia (Count II), one count of
use or possession of property subject to criminal forfeiture (Count III), and one count of
resisting arrest (Count IV).
¶8 On December 17, 1997, Gray appeared with counsel and entered pleas of not guilty to
each of the four counts. On July 16, 1998, Gray filed a motion to suppress the seized
evidence on the grounds that the search warrant lacked sufficient probable cause to justify
the search. After a hearing on August 18, 1998, the District Court denied Gray's motion to
suppress.
¶9 In March 1999, pursuant to a plea agreement, Gray pled guilty to Counts I and III and
the State dismissed Counts II and IV of the Information. On April 22, 1999, the District
Court sentenced Gray to three years in the Montana Department of Corrections (three
years for each count to run concurrently), fined Gray $1,000 on Count I, and ordered
Gray's property forfeited to the State of Montana on Count III. The District Court
suspended the custodial portion of Gray's sentence with conditions and stayed execution of
the sentence pending Gray's appeal. Gray appeals the District Court's denial of his motion
to suppress.
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STANDARD OF REVIEW
¶10 In reviewing a district court's denial of a motion to suppress evidence, we determine
whether the court's findings of fact are clearly erroneous and whether the court's
interpretation and application of the law is correct. State v. Reesman, 2000 MT 243, ¶ 18,
301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18.
¶11 We must look solely to the information given to the impartial magistrate and to the
four corners of the search warrant application. State v. Crowder (1991), 248 Mont. 169,
173, 810 P.2d 299, 302. 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.
DISCUSSION
¶12 Did the District Court err in determining there was sufficient probable cause to support
the issuance of a search warrant?
¶13 An application for a search warrant must state facts sufficient to show probable cause
for the issuance of the warrant. Reesman, ¶ 24. 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. Reesman, ¶ 24.
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. Reesman, ¶ 24. In
our review, it is critical that we pay great deference and draw every reasonable inference
possible to support a magistrate's determination that probable cause exists. Reesman, ¶ 19.
¶14 Gray contends the search warrant application lacked the necessary information to
ascertain probable cause sufficient to justify a search of Gray's residence. To support this
proposition, Gray argues the search warrant application contained unreliable hearsay,
insufficient detail, and unsupported conclusory statements.
¶15 Gray points out that CI obtained all of her information about the operation from
Wallace. Thus, Gray argues that simply alluding to CI's reliability in the search warrant
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application was insufficient because CI's reliability provided no insight into the credibility
and veracity of the hearsay information disclosed by Wallace.
¶16 As mentioned above, the record indicates that CI informed Stradinger that Gray's
residence had a concealed room in the upper portion of the residence which was
partitioned to accommodate varying stages of marijuana growth. However, CI had no
personal knowledge of this concealed room. She acquired this information from her live-in
companion, Wallace. CI did view marijuana buds and leaves which Gray purportedly
produced from his Grand residence. Again, Wallace provided the information about the
marijuana's origin.
¶17 In Reesman, we reiterated that corroboration of an informant's information through
other sources is necessary when the information is hearsay or the informant is anonymous.
Reesman, ¶ 28. Clearly, CI was not an anonymous informant. The search warrant
application states that CI had provided substantiated information in the past which implies
Stradinger was aware of CI's identity. However, since CI had no personal knowledge of
Gray's operation, the information CI provided to Stradinger constituted hearsay.
Therefore, Stradinger was obligated to corroborate CI's information through independent
investigation. Nevertheless, CI's information may be considered with other factors in
determining probable cause under the totality of the circumstances test. See State v.
Rinehart (1993), 262 Mont. 204, 211, 864 P.2d 1219, 1223. We now turn our attention to
the officers' independent investigation.
¶18 The search warrant application cites several attempts by law enforcement officers to
corroborate CI's information. One method of corroboration included verifying the physical
description of Gray and the Grand residence. In State v. Griggs, 2001 MT 211, ¶ 50, 306
Mont. 366, ¶ 50, ___ P.3d ___, ¶ 50, we recently held that "adequate law enforcement
investigation," when required, means that the subsequent corroboration of an informant's
tip must reveal indicia of human conduct that becomes suspicious when viewed in
conjunction with the incriminating information received from the informant concerning a
suspect's particular criminal activity.
¶19 In Griggs, an anonymous caller phoned detectives to inform them of an illegal
mushroom growing operation conducted in Griggs's home. The anonymous caller claimed
to have personal knowledge of the operation and provided the detectives with a
description and address of the property, a physical description of Griggs, a description of
the vehicle driven by Griggs, and Griggs's history of military service as a "sharpshooter."
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The detectives confirmed all of this information through records checks and observation of
the home's exterior. Based on that information, the detectives obtained a search warrant
and subsequently arrested Griggs for drug related offenses. Griggs filed a motion to
suppress the evidence and the district court granted his motion. We affirmed the district
court and articulated the necessity that "innocent" non-criminal activity or evidence
subjected to further corroboration by officers ripens into suspicious behavior in light of the
informant's "tip" concerning criminal activity. Griggs, ¶ 44. In Griggs, "none of the
instances of subsequent police investigation served to supply the magistrate with any
indicia of human conduct even remotely associated with the criminal activity alleged by
the anonymous informant." Griggs, ¶ 51.
¶20 Here, verifying the physical description and Gray's occupation of the Grand residence
provided the same innocuous confirmation as that contemplated in Griggs. While this
information may be important for investigative identification, it provided no indicia of
suspicious human conduct to substantiate CI's allegations. Therefore, we must look for
further police investigation to satisfy the probable cause requirement for the issuance of a
search warrant.
¶21 Even ignoring the corroborated innocuous information, the search warrant application
presented sufficient corroboration to support probable cause. The four corners of the
application presented to the magistrate stated that: (1) Wallace had a criminal history
involving dangerous drugs; (2) officers observed Gray's brother, a "known drug user,"
frequent the residence; (3) the Grand residence had four new air vents and a new pipe or
chimney which, based on Stradinger's experience and training, were consistent with the
ventilation requirements of a grow operation; and (4) the utility records for October 1997
revealed an unusual surge in electrical power usage as compared to the previous four
months.
¶22 On appeal, Gray engages in a technical dissection of the search warrant application
suggesting that this Court make various assumptions about the evidence presented to the
magistrate. See State v. Oleson, 1998 MT 130, ¶ 12, 289 Mont. 139, ¶ 12, 959 P.2d 503, ¶
12. Gray urges us to accept his offer of seemingly innocent explanations for the suspicious
conduct. See Oleson, ¶ 12. We decline to do so.
¶23 Gray contends that the references to his brother and the air vents in the search warrant
application indicate no illegal conduct as they are consistent with everyday activity. Gray
attached an affidavit to his motion to suppress in which the affiant stated the air vents had
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been installed approximately ten years ago to comply with Uniform Building Code
specifications. However, after hearing testimony in contemplation of Gray's motion to
suppress, the District Court found that "a reasonable and prudent investigator could
assume that the vents were of recent origin." Further, in his reply brief filed on his own
behalf, Gray asserts that his brother's criminal record reveals mere traffic violations and no
indication of the "known drug user" status to which Detective Stradinger referred. Both of
Gray's allegations allude to false information or incorrect inference in the search warrant
application.
¶24 When a defendant challenges the veracity of information in a search warrant
application, the defendant must make a substantial preliminary showing that the
application or affidavit in support of the search warrant included false information. State v.
Worrall, 1999 MT 55, ¶ 32, 293 Mont. 439, ¶ 32, 976 P.2d 968, ¶ 32. If the defendant
makes such a showing, then a hearing must be held wherein the defendant must prove, by
a preponderance of the evidence, that the information is untrue. Worrall, ¶ 32. If proven
untrue, then the information must be excised from the application and a determination
must be made whether there is sufficient probable cause without the excised information.
Worrall, ¶ 32.
¶25 As previously mentioned, Gray did attach an affidavit to his motion to suppress which
challenged the veracity of Stradinger's observations regarding the air vents. Gray's motion
makes no mention of his brother's criminal record. In finding that a reasonable and prudent
investigator could assume that the vents were of recent origin, the District Court impliedly
found Stradinger's testimony more credible than Gray's affiant. The District Court was in
the best position to judge the credibility of these witnesses and we will not interfere with
that determination. See Worrall, ¶ 50. While Gray reiterates the affiant's position on
appeal, he does not challenge the District Court's finding or ask this Court to excise this
information from the four corners of the search warrant application. Therefore, the
magistrate properly considered these factors in evaluating probable cause.
¶26 Next, Gray argues the magistrate should not have considered the utility records in
issuing a search warrant. Gray insists that the references to his residential power
consumption in the search warrant application contained insufficient detail as well as
conclusory statements. To support his insufficient detail argument, Gray cites State v.
Hook (1992), 255 Mont. 2, 839 P.2d 1274, and State v. Kaluza (1995), 272 Mont. 404, 901
P.2d 107.
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¶27 In Hook, detectives arrested the defendant following a search of his cabin (pursuant to
a warrant) which revealed marijuana plants, growing equipment, and drug paraphernalia.
Hook filed a motion to suppress the evidence, claiming insufficient corroboration of an
anonymous tip, and the district court granted the motion. As part of the detective's
independent investigation, he obtained power usage bills for Hook's residence. The
detective summarized his power usage findings in the search warrant application. In the
application the detective provided: the basis for his expertise in growing operations
(twelve prior marijuana grow investigations), detailed information about Hook's power
usage for the previous five months, Hook's times of residence, previous power usage by
former occupants, normal residential usage, and comparisons as to these facts both
specifically and generally. Based on that and other law enforcement corroboration, we
reversed the district court. While Hook provides a guidepost for future utility record
investigations, it does not require a finding of all of the factors mentioned therein to
establish probable cause for the issuance of a search warrant.
¶28 In Kaluza, the search warrant application stated the officer had training and experience
in investigating indoor marijuana grow operations and was aware that marijuana grow
operations consumed large amounts of electricity. The officer subpoenaed utility records
and included in the application a Montana Power Company employee's opinion that the
residence exhibited abnormally high levels of electricity consumption during all seasons,
particularly since the residence was heated with natural gas. The officer attached a graph
to the application illustrating the residence's power usage over the previous two years. We
decided that the Kaluza application contained power usage information decidedly inferior
to that in Hook both qualitatively and quantitatively. Kaluza, 272 Mont. at 409, 901 P.2d
at 110. Since the application contained no basis for the officer and employee's conclusory
statements or detailed comparisons with average and previous resident's power usage, we
concluded that the search warrant application did not establish probable cause for the
issuance of a search warrant under the totality of the circumstances test. Kaluza, 272
Mont. at 409-10, 901 P.2d at 110.
¶29 The search warrant application at bar contained the following information: (1) electric
power consumption at the Grand residence appeared relatively constant between June and
September 1997; (2) the residence used considerably more electricity (376 kwh more) in
October 1997 as compared to the previous four months; (3) a Montana Power Company
employee advised officers that the "spike" or increased power consumption in October
1997 was unusual; and (4) that based on the detective's experience, marijuana grow
operations require increased electrical power usage over and above usual residential power
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needs. The distinguishing factor in this application is the comparison of the October power
usage to that of the previous four months. This comparison revealed to Stradinger and the
Montana Power Company employee an unusual acute phenomenon as opposed to the
consistently high two-year utility records examined in Kaluza. This information properly
assisted the magistrate in determining whether the warrant application was supported by
probable cause.
¶30 Finally, Gray postulates that the search warrant application contained unsubstantiated
conclusory statements contrary to our holding in State v. Wilson (1992), 254 Mont. 317,
837 P.2d 1346. In Wilson, we stated that "conclusory statements will not provide
substantial basis to conclude that probable cause existed to issue a search warrant."
Wilson, 254 Mont. at 320, 837 P.2d at 1348. Gray argues the statements about the
residence's power usage, illegal ventilation purpose of the "new" vents and chimney, and
inference of illegal conduct surrounding Gray's brother's visits to the residence constitute
unqualified conclusory statements.
¶31 Gray's reliance on Wilson is misplaced. In Wilson, the magistrate issued a search
warrant for a residence which resulted in the defendant's arrest for cultivating a marijuana
growing operation. The defendant filed a motion to suppress which the district court
denied. We reversed, in part, on the grounds that the search warrant contained conclusory
statements regarding the utility records for the residence. The search warrant simply stated
that the defendant's power bills reflected a power use "consistent with that of a grow
operation." The application contained no data from the records or any information
concerning the detective's experience in analyzing power usage records.
¶32 Here, Stradinger premised both of his ventilation and power usage observations on his
training and experience. At a minimum, this is distinguishable from the bare assertions
imparted in Wilson. As the United States Supreme Court pointed out in Gates:
The [probable cause] process does not deal with hard certainties, but with
probabilities. Long before the law of probabilities was articulated as such, practical
people formulated certain common-sense conclusions about human behavior; jurors
as factfinders are permitted to do the same-and so are law enforcement officers.
Finally, the evidence thus collected must be seen and weighed not in terms of library
analysis by scholars, but as understood by those versed in the field of law
enforcement.
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Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-29, 76 L.Ed.2d at 544. At some point we must lend
credence to the judgment of law enforcement officers whose training and experience invoke common-
sense conclusions about human behavior. So long as officers provide reasonable justifications for their
conclusions, we will not disturb a finding of probable cause for the issuance of a search warrant.
¶33 In summary, the reliable confidential informant's hearsay information was
corroborated by independent police investigation. Wallace had a past criminal history
involving illegal drugs. The officers observed Gray's brother, a known drug user, frequent
the residence. Investigators represented in the warrant application that new air vents and a
new pipe or chimney had apparently been installed which were consistent with the
ventilation requirements of a grow operation. Utility records disclosed a surge or spike in
electrical use which was consistent with a suspected grow operation. The subsequent
corroboration revealed "indicia of human conduct that becomes suspicious when viewed
in conjunction with the incriminating information received from the informant concerning
a suspect's particular criminal activity." See Griggs, ¶ 50. When evaluating the four
corners of the search warrant application, in light of the totality of the circumstances test,
the magistrate and District Court properly concluded that probable cause existed for the
issuance of a search warrant.
¶34 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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