No. 02-627
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 300
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CONNIE BEAUPRE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DC 2002-1812,
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant
Attorney General, Helena, Montana
Valerie Wilson, County Attorney, Boulder, Montana
Submitted on Briefs: October 19,
2004
Decided: October 26,
2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Connie Beaupre (Beaupre) pled guilty to criminal possession of dangerous drugs and
criminal possession of drug paraphernalia in the Fifth Judicial District, Jefferson County,
reserving her right to appeal the District Court’s denial of her motion to suppress evidence,
which she now challenges on appeal. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the substitute justice of the peace have authority to issue the search warrant?
¶4 2. Was the warrant supported by probable cause?
¶5 3. Did the District Court err in finding a valid consensual search?
¶6 4. If the search warrant was invalid, does the fruit of the poisonous tree doctrine
require suppression of the evidence seized through the consensual search?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 In February 2002 Broadwater County Deputy Sheriff Pat Hamilton received a
computer disk from an informant. The disk contained photographic images of suspected
drugs, paraphernalia, and cooking components for methamphetamine taken at the residence
of Beaupre and her husband, Shane Beaupre (Shane), on Lower Valley Road, in Boulder,
Montana. The informant told Hamilton the pictures had been taken while informant was
working on a crew hired to clean the Beaupres’ residence after a fire. The informant also
told Hamilton that there were several empty cans of Coleman fuel, a potential precursor to
methamphetamine, outside the Beaupre residence. Hamilton subsequently contacted
Jefferson County Deputy Sheriff Bob Gleich and told Gleich about the informant’s report,
2
including the photographs. Gleich did not speak with the informant because the informant
had told Hamilton that she wished to be kept out of the proceedings.
¶8 Based on the images on the disk and the conversation with Hamilton about the
informant’s report, Gleich applied for a search warrant on or about February 6, 2002, to
search the Beaupres’ Lower Valley Road residence and a storage unit also owned by the
Beaupres on 412 North Monroe in Boulder. Gleich testified that Justice of the Peace Dennis
Giulio was unavailable and, further, that District Judge Loren Tucker was unavailable, so
acting Justice of the Peace Debbie Rennie approved the warrant.
¶9 Gleich received the warrant about 4:00 p.m. and, with the assistance of agent Daniel
J. Doyle of the Southwest Montana Drug Task Force, Montana Highway Patrol Officer Jay
Hanson and other officers, served it at approximately 6:30 p.m. at the Beaupres’ Lower
Valley Road residence. The officers found a marijuana pipe, a couple of brass finger scales,
snort straws, glass jars with residue, a roach clip, and a small round mirror, but did not locate
any of the items depicted in the photographic images provided by the informant. Gleich
contacted Hamilton and asked him to inquire of the informant where those items might be
located. Hamilton did so, and the informant stated that the items were possibly at the
Beaupres’ rented residence on Second Avenue in Boulder. Hamilton relayed this
information to Gleich. While one search team of officers went to the storage unit, Gleich,
Doyle, Hanson, and Officer Nelson of the Jefferson County Sheriff’s Office went to the
Beaupres’ rented home on Second Avenue. From this point, the Beaupres’ and the officers’
stories differ.
3
¶10 Gleich testified that only he and Doyle approached the house and knocked on the
door. He said that when Beaupre answered the door, they asked if they could enter and she
gave them permission. Once they were inside Beaupre woke up Shane, who was sleeping
on the couch. Doyle explained to the Beaupres that they were there because they had a
search warrant for the Beaupres’ storage unit and the Lower Valley residence based on
information that the Beaupres were producing methamphetamine at that residence. The
officers then asked for a key to the storage unit’s lock to avoid having to cut off the lock.
Shane went out to his truck, followed by Gleich, to retrieve the key. Once Shane located the
key, he turned it over to Gleich who radioed an officer from the storage unit search team to
come and pick up the key.
¶11 Gleich further testified that Doyle asked the Beaupres if they had any of the items the
officers were looking for. The Beaupres denied having any of the items and told Gleich and
Doyle to search the residence if they wanted. Gleich then went back outside to his patrol car
and retrieved a consent to search form. Because the pre-printed form was for a vehicle,
Gleich wrote in “residence” in the space for car make and model. While walking back to the
house, Gleich testified that he told Nelson, who was standing on the porch by this time, that
they had been given permission to search and Gleich wanted Nelson to assist. Once he was
back in the home, Gleich then read the document, line-by-line, to the Beaupres, gave the
document to Shane, and Shane read and signed it.
¶12 Beaupre testified that the officers, once she let them inside, told her that they were
there in anticipation of finding a meth lab, that they had already been to the Beaupres’ other
4
residence and had found nothing, “and figured [the Beaupres] had moved it uptown . . . .
They presented a search warrant and said if we [didn’t] sign it [the officers] were going to
tear the place apart.” She testified that the warrant was not read out loud to either Shane or
her. She also indicated that when the consent to search form was presented to her and Shane,
the officers asked for a key to the storage unit and another officer entered the home with a
large set of bolt cutters.
¶13 Shane testified that there were at least five or six officers in the house; that Gleich did
not read the consent to search form to Shane; that Shane was told the consent form was for
a vehicle; and that Shane had felt pressured and read only half of the consent form before he
signed it. In addition, Shane testified that he was not prepared to face the officers’ requests
because he had been in a deep sleep on the couch after working a fourteen-hour shift. Shane
did testify, however, that the search of the Second Avenue house did not commence until
after he signed the consent form.
¶14 Doyle’s testimony was substantially similar to Gleich’s. He added that bolt cutters
were never mentioned or brought into the home, that he had asked the Beaupres if it would
be all right if other officers entered to help with the search, and that the Beaupres had
consented. Doyle further testified that once Shane signed the consent form, Doyle searched
the Beaupres’ bedroom and there located Beaupre’s purse. Inside the purse there were
syringes and a half a gram of methamphetamine in an eyeglass repair kit. Additional
syringes and a set of scales were also found in the bedroom.
5
¶15 On March 27, 2002, Beaupre was arraigned in the District Court on an amended
information charging her with criminal possession of dangerous drugs, a felony, and criminal
possession of drug paraphernalia, a misdemeanor. She filed a motion to suppress evidence,
claiming the search warrant was void ab initio because acting Justice of the Peace Rennie
was without lawful authority, the evidence seized was fruit of the poisonous tree, and there
was no valid consent to the search of the Second Avenue residence. On July 17, 2002, the
court ruled that there was probable cause to issue the search warrant and that the Beaupres
had consented to the search of their rented home. Later that month, the District Court issued
a supplemental order concluding that substitute Justice of the Peace Rennie, contrary to
Beaupre’s claim, was qualified by law to act and the search warrant she had issued was
issued with valid authority.
¶16 In August, at a change of plea hearing, Beaupre pled guilty to criminal possession of
dangerous drugs and criminal possession of drug paraphernalia, reserving her right to appeal
the suppression issues. The District Court imposed a three-year deferred sentence for
criminal possession of dangerous drugs and a concurrent six-month deferred sentence for
possession of drug paraphernalia, during which Beaupre would be under the supervision of
the Department of Corrections and would adhere to several conditions. Beaupre
subsequently filed a notice of appeal with this Court and then moved the District Court to
stay the fine and surcharges, which the District Court granted.
6
STANDARD OF REVIEW
¶17 Citing to our decision in State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355,
Beaupre states that the standard of review for a motion to suppress is whether there is
substantial credible evidence to support the court’s findings of fact and whether those
findings were correctly applied as a matter of law. However, in State v. Hermes (1995), 273
Mont. 446, 904 P.2d 587, we modified the substantial credible evidence standard used in
Rushton and stated that we would not “overturn a District Court’s findings of fact regarding
suppression hearing evidence unless those findings are clearly erroneous.” Hermes, 273
Mont. at 449, 904 P.2d at 589 (quoting State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d
1280, 1286). We have further held that findings of fact are clearly erroneous “if they are not
supported by substantial evidence, the court has misapprehended the effect of the evidence,
or our review of the record convinces us that a mistake has been committed.” State v.
Lacasella, 2002 MT 326, ¶ 10, 313 Mont. 185, ¶ 10, 60 P.3d 975, ¶ 10.
DISCUSSION
ISSUE ONE
¶18 Did the substitute justice of the peace have authority to issue the search warrant?
¶19 Beaupre argues that § 3-10-231(3), MCA, was violated because there was no attempt
to call in another justice of the peace or city judge to issue the search warrant prior to
contacting substitute Judge Rennie for execution of the warrant and that the warrant is void
pursuant to our decisions in State v. Vickers, 1998 MT 201, 290 Mont. 356, 964 P.2d 756,
and Potter v. Dist. Ct. of 16th Jud. Dist. (1994), 266 Mont. 384, 880 P.2d 1319.
7
¶20 Section 3-10-231, MCA, provides:
(1) Whenever a justice of the peace is disqualified from acting in any
action because of the application of the supreme court’s rules on
disqualification and substitution of judges, 3-1-803 and 3-1-805, the justice of
the peace shall either transfer the action to another justice’s court in the same
county or call a justice from a neighboring county to preside.
(2) (a) The following requirements must be met to qualify a substitute
for a justice of the peace:
(i) Within 30 days of taking office, a justice of the peace shall provide
a list of persons who are qualified to hold court in the justice’s place during
a temporary absence when another justice or city judge is not available. The
persons listed must be of good moral character and have community support,
a sense of community standards, and a basic knowledge of court procedure.
(ii) The sitting justice of the peace shall request and obtain from the
commission on courts of limited jurisdiction established by the supreme court
a waiver of training for the substitutes.
(iii) Each person on the list, provided for in subsection (2)(a)(i), shall
subscribe to the written oath of office as soon as possible after the person has
received a waiver of training from the supreme court. The oath may be
subscribed before any member of the board of county commissioners or before
any other officer authorized to administer oaths.
(b) The list of qualified substitutes, the written oath, and the
commission’s written approval and waiver of training for those substitutes,
pursuant to subsection (2)(a)(ii), must be filed with the county clerk as
provided in 3-10-202.
(c) A county clerk may provide a current list of qualified and sworn
substitutes to local law enforcement officers.
(3) Whenever a justice is sick, disabled, or absent, the justice may call
in another justice, if there is one readily available, or a city judge or a person
from the list provided for in subsection (2) to hold court for the absent justice
until the absent justice’s return. If the justice is unable to call in a substitute,
the county commissioners shall call in another justice, a city judge, or a person
from the list provided for in subsection (2).
(4) During the time when a justice of the peace is on vacation or
attending a training session, another justice of the peace of the same county is
authorized to handle matters that otherwise would be handled by the absent
justice. When there is no other justice of the peace in the county, the justice
of the peace may designate another person in the same manner as if the justice
were sick or absent.
(5) A justice of the peace of any county may hold the court of any other
justice of the peace at that justice’s request.
8
¶21 In Potter, we held that, pursuant to § 3-10-231(2), (3), and (4), MCA, “a sitting justice
of the peace must first attempt to call in another justice of the peace, if there is one readily
available, or a city judge before resorting to calling in a qualified substitute judge from the
list.” Potter, 266 Mont. at 391, 880 P.2d at 1324 (citation omitted). In Vickers, we held that
the statute did not permit a justice of the peace to delegate to law enforcement the task of
contacting another justice, but rather, the justice was required to personally contact a
replacement. Vickers, ¶ 28.
¶22 The record indicates that, prior to this incident, Judge Guilio obtained letters from
judges in Helena and Butte indicating that they were not available should he be absent.
These letters were updated every six months. Judge Guilio followed this course of action
pursuant to advice provided in an Attorney General’s opinion, which stated, in part, as
follows:
A letter from a neighboring justice stating that he or she is too busy to
act as a substitute may be relied upon by the sitting justice for a reasonable
period of time. It would be unreasonable, however, to rely upon such a letter
indefinitely to determine the availability of the justice. Periodically, the
justices who wrote the letters should be contacted to determine if they are still
unavailable. The reasonableness of such a time period may vary, but it would
be prudent to contact the justices every four to six months to determine
whether they are still unavailable.
48 Op. Att’y Gen. No. 11 (2000).
¶23 Additionally, the State offered a letter at the suppression hearing from Judge Guilio
which stated that he had also personally visited with the judges “in all counties” regarding
their availability. This evidence is not challenged on appeal.
9
¶24 Thus, consistent with Vickers, Judge Guilio personally contacted the other judges, and
did not simply instruct police to do so. Consistent with Potter, Judge Rennie, Judge Guilio’s
designated substitute, was called into service after Judge Guilio had previously determined
that the other judges were not available.1
¶25 Beaupre further argues that, although the letters obtained by Judge Guilio may have
verified that judges were unavailable in Butte and Helena, there was no such letter obtained
from a justice of the peace in Townsend, Broadwater County, and therefore, not all of the
“neighboring counties” were contacted prior to bringing Judge Rennie into service. This
argument is in reference to the requirement in § 3-10-231(1), MCA, that the justice of the
peace shall “call a justice from a neighboring county to preside.”
¶26 We note, however, that § 3-10-231(1), MCA, governs substitution when a justice of
the peace is disqualified from acting pursuant to the judicial disqualification statutes. The
“neighboring county” provision is not repeated in other subsections of the statute governing
substitutions for sickness, disability, vacation, attending a training session or other absences.
Section 3-10-231(3) and (4), MCA. However, we need not resolve this question of statutory
interpretation for purposes of this case because Judge Guilio, in addition to obtaining letters
from some counties, received verbal confirmation from the judges “in all counties” of their
unavailability, which would mean, at a minimum, those counties neighboring Jefferson
County.
1
The 1997 amendments to § 3-10-231, MCA, which followed Potter and Vickers,
do not affect the analysis here.
10
¶27 Beaupre also criticizes Gleich for making no attempt to contact a judge from Butte,
Helena or Townsend prior to contacting Judge Rennie. However, it was precisely such
“judge-shopping” by law enforcement which we held was inappropriate in Vickers. Vickers,
¶ 28 (“Judge Larsen simply provided law enforcement with a ‘menu’ of substitutes from
which to choose. This procedure clearly violates § 3-10-231, MCA, and encourages ‘judge-
shopping.’”). Under the statute, it is the duty of the sitting judge to determine what other
judges are available, and here, Judge Guilio did so.
¶28 Having considered Judge Guilio’s efforts, we cannot conclude that § 3-10-231, MCA,
and the interpretations thereof rendered in Potter and Vickers, were violated.
¶29 Beaupre next claims that Judge Rennie’s designation as substitute judge did not
comply with § 3-10-231(2)(a)(i), MCA, which requires a substitute to be designated by a
justice of the peace “[w]ithin 30 days of taking office,” because Judge Guilio’s designation
of Judge Rennie occurred in late November 1998, following his re-election, and because
Judge Rennie’s oath of office was sworn to before District Judge Frank Davis on December
31, 1998, the last day of Judge Guilio’s first elected term and prior to the initiation of his
second elected term.
¶30 However, according to Merriam-Webster’s Collegiate Dictionary (1998), the
preposition “within” is “used as a function word to indicate situation or circumstance in the
limits or compass of: as . . . before the end of[.]” Such a reading of “within,” used as a
preposition by § 3-10-231(2)(a)(i), MCA, would require designation of a substitute “before
the end of” thirty days following the judge’s taking office. The statute does not, by its plain
11
language, preclude designation of a substitute prior to the initiation of the term for which the
judge was elected. As the District Court reasoned:
[T]he legislature intended to create a deadline for the various activities which
establish eligibility for substitutes rather than creating a narrow window of
time within which qualifying action must be taken. Qualifications for
substitute Justice of the Peace in this case were complete long before the
deadline.
¶31 The language here thus has the effect of setting a deadline for designation of a
substitute at thirty days following the beginning of the term. Judge Guilio was elected for
a second term in November 1998 and, as the incumbent judge, thereafter completed the
process for designating a substitute in November and December 1998. His designation thus
satisfies the timing requirement because it was completed prior to the expiration of the
statutory deadline.
¶32 The dissent offers an alternative interpretation of this provision, but enters the
theoretical world to do so, positing that the issue must be addressed “as though Judge Guilio
had been newly elected in November of 1998,” and that, therefore, the question is whether
Judge Guilio could have taken “any official action prior to taking office.” However, that is
not the reality here, and therefore, does not solve the dilemma. Judge Guilio was not newly
elected in November of 1998 and the issue is not whether he could have taken action prior
to taking office. In fact, he was an incumbent judge who took the action while he was in
office. Our duty is to apply this statute to this case, not to theoretical circumstances that may
provide easier choices. In short, we must face the facts.
12
¶33 Neither do the other “30 day provisions” offered by the dissent provide any assistance.
Quite simply, under none of those provisions would it be possible for the contemplated
action to be completed prior to the commencement of the thirty-day period. How could a
district court set aside an agency decision before it was rendered? Indeed, there would be
nothing to set aside. The meanings of these provisions are obvious from their individual
contexts, and are not governed by a universal application of the definition of “of, ” as the
dissent suggests. Here, the statute in question does not prohibit action by a sitting judge and
is reasonably interpreted to set a deadline by which the action had to be completed. The
District Court was correct in so holding.
¶34 Lastly, Beaupre argues that Judge Rennie’s designation as a substitute judge was
unlawful because Judge Rennie’s “waiver of training” form signed by Judge Guilio on
December 10, 1998, designated Judge Rennie as a substitute “until the end of my present
term of office,” which drew to a close shortly thereafter with the expiration of the year 1998.
However, we have already determined that Judge Rennie was timely designated under the
statute as a substitute judge for Judge Guilio’s second term, beginning in January 1999.
Further, the record reflects that the documentation to accomplish that purpose, including
Judge Rennie’s waiver of training form, was properly submitted by Judge Guilio. Thus,
despite the inaccurate wording on the training form itself, Judge Guilio satisfied all of the
statutory requirements for designation of Judge Rennie as a substitute judge, and therefore,
we conclude that the error in the wording is of no consequence, and did not affect Judge
13
Rennie’s authority to act. Accordingly, we hold that Judge Rennie had authority to issue the
search warrant.
ISSUE TWO
¶35 Was the warrant supported by probable cause?
¶36 Beaupre claims that there was insufficient information to establish probable cause
necessary for issuance of the search warrant because the informant was anonymous as to
Officer Gleich and her report was not corroborated by police. She also notes that the
photographs taken by the informant did not exhibit all of the items identified in the
application. The State responds that there was probable cause because the informant was not
anonymous as to Officer Hamilton, and, even if the information was hearsay to Gleich, it
was nonetheless reliable because it was founded upon the personal observations of the
informant, acting as a concerned citizen, and upon pictures which confirmed the informant’s
information.
¶37 We must determine whether the District Court, in issuing the search warrant, “had a
substantial basis to determine probable cause existed.” State v. St. Marks, 2002 MT 285,
¶ 12, 312 Mont. 468, ¶ 12, 59 P.3d 1113, ¶ 12. In analyzing whether probable cause existed,
we do not look at “each individual fact presented in the application for search warrant,” but
rather a “totality of the circumstances.” St. Marks, ¶ 22. Where a warrant is based on an
informant’s information, we have previously “set out a step-by-step analysis for determining
when further corroboration of an informant’s information is necessary to establish sufficient
14
probable cause.” St. Marks, ¶ 24; see State v. Reesman, 2000 MT 243, ¶¶ 28-35, 301 Mont.
408, ¶¶ 28-35, 10 P.3d 83, ¶¶ 28-35.
¶38 First, if the informant is anonymous, independent corroboration of the informant’s
information is required. Reesman, ¶ 28. If the informant is not anonymous, the next inquiry
is whether the informant’s information is based on personal observation or hearsay.
Reesman, ¶ 29. If based on hearsay, then independent corroboration is needed.
Reesman, ¶ 30. If based on the informant’s personal observation, we then address reliability
by determining whether the informant has provided reliable and accurate information to
officers in the past, whether the admission is against the informant’s interest, or whether the
informant was motivated by good citizenship. Reesman, ¶¶ 31-34.
¶39 Addressing the first requirement, Beaupre argues that the informant was anonymous
because Gleich was not aware of the informant’s identity, and distinguishes our holding in
State v. Oleson, 1998 MT 130, 289 Mont. 139, 959 P.2d 503 (overruled in part on other
grounds by State v. Kuneff, 1998 MT 287, ¶ 19, 291 Mont. 474, ¶ 19, 970 P.2d 556, ¶ 19),
which was relied upon by the District Court. In Oleson, an informant advised a game warden
that the informant had observed an individual in a pick-up truck with the license “RIG PIG”
spotlighting near the Yellowstone River, and had heard gunshots coming from the pick-up’s
location. Oleson, ¶ 10. The informant asked to remain anonymous. Oleson, ¶ 10. The
game warden visited the area identified by the informant and recovered .22-250 caliber shell
casings and deer hair in a drainage ditch within ten feet of the shell casings. The warden
obtained a warrant and searched the defendant’s home for evidence of the unlawful taking
15
of big game, but also discovered twenty-five packets of methamphetamine, money, and
records of drug transactions, leading to drug charges. Oleson, ¶ 2. Based on the foregoing
and the warden’s experience and training in wildlife crime detection, we concluded that the
District Court did not err in concluding that the warrant to search the defendant’s home was
supported by probable cause, despite the informant’s anonymity. Oleson, ¶¶ 11, 19.
Beaupre argues that our decision in Oleson “relied heavily” on the warden’s personal
discussion with the informant, but here, Gleich had no discussions with the informant.
¶40 Beaupre’s argument here is essentially two-fold. First, she asserts that because Gleich
did not personally speak with or know the informant, then, pursuant to Reesman, the
informant was “anonymous” and police corroboration was required. Secondly, although she
does not expressly raise a hearsay issue, she argues that, unlike Oleson, the officer
(Hamilton) who had personal contact with the informant was not the same officer (Gleich)
who applied for the warrant. Her argument implies that because the informant was
anonymous as to Gleich, the warrant was defective because it was based upon hearsay. We
turn to her first argument.
¶41 Two years after Oleson, we more precisely defined, in Reesman, both the terms and
procedures to be employed in analyzing search warrants based upon an informant’s reports.
We said an “anonymous” informant “means that law enforcement officers have no idea who
is providing the information. A phoned-in Crimestoppers ‘tip’ is one frequent, common
example.” Reesman, ¶ 28. Clearly, the informant here was not “anonymous” under this
definition. Beaupre correctly notes that the informant was not known to Gleich, but the
16
informant was known to Hamilton, who personally talked to the informant and obtained the
disk containing pictures from the informant. Hamilton’s actions were similar to those of the
warden in Oleson. Here, like Oleson, an officer established the informant’s identity and had
personal contact with the informant. Hamilton then contacted Gleich, who applied for the
search warrant based on the information received from Hamilton and Gleich’s own
observation of the informant’s pictures. Thus, the informant was not “anonymous” as
defined in Reesman.
¶42 However, though not anonymous, the informant did not want to be identified, and
thus, must be considered a “confidential” informant. To determine the need for independent
corroboration, we then inquire whether the confidential informant’s report was based upon
personal observation of the criminal activity. Reesman, ¶ 29. This requirement is clearly
satisfied by the informant’s personal involvement here, which included taking pictures.
Lastly, the inquiry is whether the confidential informant may be deemed to be reliable.
Reesman, ¶ 31.
¶43 The basis offered for establishing reliability here is that the informant was acting as
a concerned citizen. When determining whether an informant was acting pursuant to good
citizenship, we look to “the very nature of the circumstances under which the incriminating
information became known.” Reesman, ¶ 34 (quoting State v. Valley (1992), 252 Mont. 489,
493, 830 P.2d 1255, 1258). The factual situation here is similar to Reesman, but is different
in a significant respect which requires a different outcome than in Reesman.
17
¶44 As here, the informant in Reesman was known to police, but remained confidential.
Reesman, ¶ 37. Further, the warrant application in Reesman failed to state that the informant
was acting as a “concerned citizen.” Reesman, ¶ 38. Such an indication is also missing from
Gleich’s application here. Although describing the informant’s personal involvement with
the evidence and stating that the informant “then immediately notified law enforcement,” the
application does not specifically claim that the informant was acting as a concerned citizen.
¶45 However, we reasoned in Reesman that it was “more important” for the application
to state:
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 [the occupant] so willingly show her his
illegal operation? We do not know, and, accordingly, neither did the
reviewing magistrate.
Reesman, ¶ 38. Because these questions about the informant’s involvement and motivation
were unanswered by the application, we concluded it was insufficient to provide probable
cause without further corroboration. Reesman, ¶ 39. However, the application here is not
similarly flawed.
¶46 Gleich’s application stated that the Beaupres’ home had sustained fire damage for
which they had contacted a cleaning company. In response, the cleaning crew, including the
informant, went to the residence and began working inside. The crew began handling and
boxing up personal property items within the house. During that process, the crew observed
items they believed to be contraband and an illegal narcotics operation, prompting them to
18
take photographs of the items. Following completion of the cleaning duties, law enforcement
was immediately notified. The informant met with police and delivered the photographs.
¶47 Thus, unlike Reesman, the application here contained the necessary information to
establish the reason for informant’s personal exposure to the evidence. The questions
unanswered in Reesman are answered here. In this case, the informant was acting as an
ordinary citizen who worked as part of a hired cleaning crew that cleaned the Beaupres’
home after a fire in the residence. The informant was thrust, via employment, into the
position of observing drug manufacturing components at the Beaupres’ residence and
subsequently reported it to the police. There is nothing in the record to suggest any
motivation other than good citizenship, and we conclude that the informant was reliable for
purposes of establishing probable cause without further corroboration, and that the
information used in the application was reliable and credible.
¶48 Beaupre’s second argument, that the warrant was impermissibly based on hearsay, is
likewise unavailing. We have held that “[i]t cannot be disputed that hearsay information may
be considered to establish probable cause,” State v. Kelly (1983), 205 Mont. 417, 434, 668
P.2d 1032, 1042 (quoting State ex rel. Townsend v. District Court (1975), 168 Mont. 357,
360, 543 P.2d 193, 195), but, more specifically, we have also held that “[o]bservations of
fellow officers of the Government engaged in a common investigation are plainly a reliable
basis for a warrant applied for by one of their number.” State v. Seaman (1989), 236 Mont.
466, 472, 771 P.2d 950, 954 (quoting United States v. Ventresca (1965), 380 U.S. 102, 111,
19
85 S.Ct. 741, 747, 13 L.Ed.2d 684, 690). As such, it was not inappropriate for Gleich to rely
on the information Hamilton provided.
¶49 Neither was the application insufficient, as Beaupre argues, because the photographs
supplied by the informant did not exhibit all of the items listed on the application to be
seized during the search. The application relied upon the cleaning crew’s personal
observations, as communicated by the informant, which was confirmed by photographs of
a syringe, cooking components and a white, powdery substance which the crew believed to
be cocaine. Officer Gleich, based upon his experience and training, saw other items in the
photographs, such as straws, wires and spoons, which he believed were consistent with a
drug operation. The informant also related additional information, such as the presence of
cooking glassware and empty cans of Coleman fuel. Taken together, the application
presented sufficient reliable information to support the search warrant.
¶50 Accordingly, we hold that the District Court did not err in concluding that there was
probable cause to issue the search warrant.
ISSUE THREE
¶51 Did the District Court err in finding a valid consensual search?
¶52 Beaupre argues that the District Court erred in finding that there was consent to the
search because the District Court did not apply the totality of the circumstances test and
instead found that the Beaupres were not credible. The State counters that the District Court
did look at the totality of the circumstances and properly concluded that the Beaupres had
consented to the search.
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¶53 “The knowing and voluntary consent by a citizen to a search is a recognized exception
to the warrant requirement.” State v. Olson, 2002 MT 211, ¶ 19, 311 Mont. 270, ¶ 19, 55
P.3d 935, ¶ 19. In determining whether consent was knowing and voluntary, “we must
consider the totality of the circumstances surrounding the giving of the consent.” Olson,
¶ 21. Beaupre insists that there was no valid consent because she and Shane were coerced
into consenting to the search. She alleges coercion because there were numerous officers in
her home, Shane did not read the consent form before he signed it, and Shane was taken off
guard because he had been sleeping after a long work shift and was not prepared to “face
something like this.”
¶54 The record clearly indicates that the District Court did consider the totality of the
circumstances. In finding that the Beaupres had consented to the search, the District Court
noted the “inconsistencies in [the Beaupres’] recollections and in the testimony or the
evidence which they provided by their previous affidavits,” and orally ruled, in part, as
follows:
there were a minimum number of officers who, first of all, requested
permission to enter the house, made an inquiry after they arrived within the
house whether they could search, they were authorized verbally to search, they
went to the efforts of attempting to corroborate that by a written signature, that
was done after Mr. Beaupre read various, depending on his testimony, the top
half, which contains all of the terms about voluntarily authorizing the officers
to search and remove items or all of the consent form and then a relaxed Mr.
Shane Beaupre signed the consent agreement.
¶55 Our review of the record and the District Court’s decision indicates that there was
substantial evidence to support the District Court’s decision. Accordingly, we hold that it
did not err in finding that the Beaupres voluntarily and knowingly consented to the search.
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ISSUE FOUR
¶56 If the search warrant was invalid, does the fruit of the poisonous tree doctrine require
suppression of the evidence seized through the consensual search?
¶57 Because we conclude that the District Court properly found that substitute Justice of
the Peace Rennie had authority to issue the search warrant, that the search warrant was
supported by probable cause, and that the Beaupres voluntarily and knowingly consented to
the search, we do not need to address this issue.
¶58 Affirmed.
/S/ JIM RICE
We concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ JOHN WARNER
Chief Justice Karla M. Gray, dissenting.
¶59 I dissent from the Court's determination that Rennie, the purported substitute justice
of the peace, had authority to issue the search warrant. On that basis, I would not reach
whether the warrant was supported by probable cause and would conclude that the
consensual search--as well as evidence found at the places searched--resulted from an invalid
warrant and, therefore, were fruit of the poisonous tree. I would reverse the District Court's
denial of Beaupre's motion to suppress.
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¶60 The key to the proper resolution of all these issues, as the Court recognizes, is
whether substitute justice of the peace Rennie was authorized to issue the warrant. In other
words, were the requirements set forth in § 3-10-231, MCA, met? I submit that they were
not.
¶61 I agree that the "within 30 days of taking office" phrase in § 3-10-231(2)(a)(i), MCA,
is the focal point of this issue because, unless Judge Guilio's designation of Rennie occurred
timely within the meaning of that phrase, Rennie was not authorized to issue the search
warrant. I disagree with the Court's approach to interpreting that phrase, as well as with the
result it reaches therefrom.
¶62 I do not disagree with the Court that a dictionary contains the definition of "within"
on which it relies. Indeed, various oft-used and respected dictionaries contain a plethora of
definitions of the word "within" when used as a preposition. See, e.g., THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1976 (4th ed. 2000); WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY 2627 (1971).
¶63 In my opinion, however, the question before us is really not the definition of "within."
The question is the meaning of the entire prepositional phrase "within 30 days of taking
office." In other words, does the phrase mean, as the Court seems to posit, that Judge Guilio
was required to designate Rennie at any time after his re-election in early November of 1998
but no later than 30 days after he took office again? I think not. It is my view that the 30
days run forward from the circumstance included at the end of the prepositional phrase--here,
within 30 days after taking office. I realize that the Legislature used the word "of" rather
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than the word "after." But, in my view, the only reasonable interpretation of legislative
intent in the context of § 3-10-231, MCA, is "within 30 days after taking office."
¶64 Section 3-10-231(2)(a), MCA, contains only one provision regarding a justice of the
peace providing a list of substitute justices of the peace. The requirement is that a justice of
the peace shall provide a list of persons qualified to hold court in the justice's place "[w]ithin
30 days of taking office." Section 3-10-231(2)(a)(i), MCA. The statute does not contain a
method applicable to a newly elected justice of the peace and a separate method applicable
to a re-elected justice of the peace such as Judge Guilio. Thus, this issue must be addressed
as though Judge Guilio had been newly elected in November of 1998.
¶65 The question, then, is whether a justice of the peace can take any official action prior
to taking office, as the Court's analysis of the phrase "within 30 days of taking office" would
permit. The answer, quite simply, is "no"--because the elected person does not become a
justice of the peace for purposes of designating substitutes, or any other purpose, unless and
until she or he "takes office." In the present case, it is not disputed that Judge Guilio's
designation of Rennie was not timely during his first term of office. By the same token,
since the designation was made prior to--and not within 30 days after--Judge Guilio took
office for his second term, the designation did not satisfy the statutory requirements. As a
result, Rennie was not authorized to issue the search warrant at issue in the present case.
¶66 Other than a dictionary definition which relates solely to the word "within," the Court
advances no authority for its interpretation of the statutory phrase "within 30 days of taking
office." This is somewhat surprising, given the number of times the phrase "within 30 days
of [some occurrence or event]" appears in Montana law.
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¶67 The phrase appears once in the people's document--the Montana Constitution. Article
VII, Section 8 provides that in the event the governor fails to timely appoint a replacement
for a District or Supreme Court vacancy, the Chief Justice shall make the appointment from
the same nominees "within thirty days of the governor's failure to appoint." Certainly that
constitutional provision can only mean "within thirty days after the governor's failure to
appoint." No rational person would even hint that the Chief Justice could act during the
same period of time the governor was authorized to act. Yet, a refusal to interpret "within
30 days of" as "within 30 days after" results in such a conclusion.
¶68 Moreover, the prepositional phrase "within 30 days of [some occurrence or event]"
appears more than 200 times in the Montana Code Annotated. Only a few examples need
to be set forth to illustrate the error in the Court's interpretation. Section 2-3-114, MCA,
provides that "[t]he district courts of the state have jurisdiction to set aside an agency
decision under this part upon petition made within 30 days of the date of the decision[.]"
Can this statute really mean, as it does pursuant to the Court's analysis, that a petition can
be filed within 30 days before the decision at issue, but not later than 30 days after the
decision? Similarly, § 2-3-213, MCA, provides that a suit to void a decision made in
violation of § 2-3-203, MCA, must be commenced "within 30 days of the decision." Does
this mean that such a suit can be filed in a district court within 30 days before the decision
is made, but not later than 30 days after? Surely not!
¶69 Furthermore, the Legislature is fully cognizant of how to set a time parameter which
includes a 30-day time period both before and after a specified event. For example, § 1-5-
405(3), MCA, requires fees and documents to be submitted "within 30 days before or within
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30 days after" the effective date of a surety bond. The Legislature did not include this
language in § 3-10-231(2)(a)(i), MCA.
¶70 Finally, to the extent the Court believes it is appropriate to rely on a dictionary
definition of only one word in the phrase at issue, I recommend it look to a definition for the
word "of." The first definition of that word set forth in THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 1219 (4th ed. 2000), is "originating at or from."
Under this common meaning of the word "of," the only reasonable interpretation of the
phrase "within 30 days of taking office" is that a substitute justice of the peace must be
designated within 30 days from a justice of the peace taking office, not prior to taking office.
¶71 Judge Guilio's designation of Rennie prior to taking office does not comply with the
requirement of § 3-10-231(2)(a)(i), MCA, that a justice of the peace shall provide for a
substitute justice of the peace within 30 days of taking office. The search warrant at issue
in the present case was not valid because Rennie was not authorized to issue it. For that
reason, I would reverse the District Court’s denial of Beaupre's motion to suppress and
remand for further proceedings consistent with the stated conclusions. I strenuously dissent
from the Court's refusal to do so.
/S/ KARLA M. GRAY
Justice James C. Nelson dissents.
¶72 I concur in Chief Justice Gray’s dissent. As an aside, this is the third time in the last
ten years that this Court has been called upon to interpret § 3-10-231, MCA. See State v.
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Vickers, 1998 MT 201, 290 Mont. 356, 964 P.2d 756; Potter v. Dist. Ct. of 16th Jud. Dist.
(1994), 266 Mont. 384, 880 P.2d 1319. In these cases, the evidence that was seized pursuant
to search warrants issued by justices of the peace was suppressed because of a failure to
comply with the technical requirements of § 3-10-231, MCA.
¶73 Specifically, in Vickers, the acting justice of the peace did not qualify as a judge under
§ 3-10-231, MCA, because: (1) he failed to create a list of substitutes; (2) the constitutional
oath of office was not properly administered; and (3) he failed to satisfy the call-in procedure
when he did provide law enforcement officials with a “menu” of substitutes, rather than
designating specific justices whom could assume jurisdiction. Vickers, ¶¶ 26-29. Further,
in Potter, we held that marijuana and other drug related evidence seized as a result of search
warrants issued by an acting justice of the peace must be suppressed, given that the acting
justice of the peace did not qualify as such under § 3-10-231, MCA, because he: (1) did not
draw up a list of persons qualified to hold court in his absence within thirty days of his taking
office; (2) he did not a obtain a waiver of training from the Commission; (3) he was not
sworn as an acting justice of the peace; and (4) another city judge was not asked to serve,
although he was capable of so doing. Potter, 266 Mont. at 392-94, 880 P.2d at 1324-26.
¶74 In addition to Vickers and Potter and the discussions contained therein, § 3-10-231,
MCA, has been at issue in five separate Attorney General Opinions. All of these opinions
have attempted to provide guidance regarding the very complex process of substituting a
justice of the peace. See 48 Op. Att’y Gen. 11 (2000); 43 Op. Att’y Gen. 51 (1990); 43 Op.
Att’y Gen. 49 (1989); 42 Op. Att’y Gen. 4 (1987); 40 Op. Att’y Gen. 26 (1983). If nothing
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else, this Court’s Opinions in Vickers and Potter, coupled with those of the Attorney General
ought to say something to the legislature regarding the complexity of the process delineated
in § 3-10-231, MCA--namely that calling in an acting justice of the peace should not be this
difficult.
¶75 Section 3-10-231, MCA, was originally enacted in 1871; it has been amended
numerous times, the last in 1997. It is high time that § 3-10-231, MCA, be scrapped and a
new statute adopted which simplifies the process and procedure for calling in a qualified
substitute justice of the peace. The present statute contains sufficient traps for the unwary
and, as here, interpretational issues, to make calling in a substitute justice, at best, risky
business. And, as demonstrated by Vickers and Potter, the consequences of not complying
with the statute are severe--i.e., crucial evidence of criminal conduct can be lost.
¶76 In some cases, as the Court’s Opinion shows, the actual practice of justices does not
conform to what that law actually requires--e.g., some justices do not consult with every
judge in every surrounding county in attempting to assess the judge’s availability or lack
thereof.
¶77 In other instances, what the law requires does not make sense. For example, § 3-10-
231(4), MCA, requires that if the justice of the peace is attending a training session, another
justice of the peace in the same county is authorized to handle matters that would otherwise
be handled by the absent justice. One problem with this language is that all limited court
jurisdiction judges must complete two mandatory training sessions each year as prescribed
by the Commission on Courts of Limited Jurisdiction. See § 3-1-1502, MCA; Rule 4 of the
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Rules for Courts of Limited Jurisdiction Training and Certification of Judges. In
jurisdictions which have two justices of the peace, both justices of the peace, along with the
city court and municipal court judges, will all be in the prescribed training at the same time.
¶78 In short, § 3-10-231, MCA, needs to be made a good deal more user friendly and
workable than it is now. I join Chief Justice Gray’s Dissent.
/S/ JAMES C. NELSON
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