State v. Thomas Tucker Jr.

August 5 2008

DA 06-0284

IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 273

STATE OF MONTANA,

Plaintiff and Appellee,

v.

THOMAS EUGENE TUCKER, JR.

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-03-335
Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker,
Assistant Appellate Defender; Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Tammy Plubell,
Assistant Attorney General; Helena, Montana

Fred Van Valkenburg, Missoula County Attorney, Kirsten L. LaCroix,
Deputy County Attorney; Missoula, Montana

Submitted on Briefs: October 17, 2007

Decided: August 5, 2008

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Thomas Eugene Tucker, Jr. appeals from the final judgment and order of the

District Court for the Fourth Judicial District, Missoula County, denying his motion to

suppress evidence seized from his residence pursuant to a search warrant. We affirm.

¶2 The issues on appeal are as follows:

1. Did the District Court err in concluding there was sufficient probable cause in

the application for search warrant when it denied Tucker’s motion to suppress?

2. Did the District Court abuse its discretion in failing to conduct a hearing on

Tucker’s motion to suppress, pursuant to § 46-13-302(2), MCA?

3. Alternatively, if it was necessary for Tucker to have requested a hearing on his

motion to suppress, did defense counsel render ineffective assistance in failing to do so?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On December 4, 2002, Detective Richard J. Maricelli of the Missoula County

Sheriff’s Department applied for a warrant to search Tucker’s residence located at 19505

Pond Road in Frenchtown, Montana. Detective Maricelli filed the application for search

warrant acting on the belief that Tucker had committed the offenses of criminal

defamation and sexual abuse of children. Detective Maricelli based the application on

information obtained from two different sources—Eric Belker, a Frenchtown resident

who had hired Tucker to do drywall work on the Belker’s family home, and Tucker’s ex-

fiancée, Aleece Sobrio. Detective Maricelli set forth the following facts as grounds for

the search warrant in the application.

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¶4 The application stated that on November 7, 2002, a Missoula County Sheriff’s

deputy responded to a call complaining of criminal defamation in Frenchtown, Montana.

The officer met with Eric Belker. Belker informed the officer that someone had placed

thirty slanderous letters in area mailboxes. Belker suspected that Tucker had distributed

the anonymous letter. In March of 2002, Belker had criminal charges brought against

Tucker for deceptive practices, related to the drywall work Belker had hired Tucker to

complete. The charge stemmed from Belker’s contention that Tucker failed to complete

the job in a timely manner, despite numerous extensions and receiving his fees up front.

Belker also alleged that his wife Virginia had caught Tucker in their young daughter’s

bedroom with a pair of their daughter’s underwear in his hand. The application stated

that Tucker did not seem to have a reasonable explanation for this and told Virginia that

he picked them up off the floor so that he would not step on them. In the application,

Belker also said that Tucker worked at the Frenchtown High School but was fired when

he was discovered to be a registered sex offender. Belker had not known about Tucker’s

dismissal until the assistant principal contacted Belker and informed him that Tucker had

contacted the assistant principal inquiring if Belker was responsible for disclosing

Tucker’s registered sex offender status to the school.

¶5 The anonymous letter made several allegations concerning Belker, a retired

California police officer, including that Belker had “gunned down a young innocent

child” while serving in California, that Belker had an extremely violate nature and quick

temper, that Belker came to Montana to hide his crime, as well as numerous other

allegations of a similar nature. The application stated that the shooting was determined to

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be justified as an “in the line of duty shooting” and Belker was cleared of any criminal or

civil charges. Belker also related that he had disclosed the details of the shooting with

only a few of his closest friends, and not Tucker. Belker speculated that Tucker learned

of the incident while snooping around the Belker’s residence. A copy of the letter was

included with the application.

¶6 The application further detailed that a week after Belker contacted the sheriff’s

office, Detective Maricelli received a copy of a letter sent by Tucker’s ex-fiancée Aleece

Sobrio to Deputy Missoula County Attorney Kirsten LaCroix. While the application did

not identify Sobrio by name, it did refer to her as Tucker’s ex-fiancée. The application

summarized the contents of the letter, including that Sobrio and Tucker had met on the

internet in 2001 and she had eventually moved from Utah to Montana to be with him.

Shortly thereafter, she and Tucker had gotten engaged and planned to marry. The

relationship began to deteriorate when she learned that Tucker was a registered sex

offender and that he had an “exorbitant” amount of pornography, both in his bedroom

and in a camper/trailer located on the property. The application stated that Sobrio had

found a number of young girl’s undergarments in Tucker’s possession, as well as

depictions of what she believed to be underage girls in pornographic DVDs, videos,

magazines, and computer images. For these reasons and due to what she said was

Tucker’s violent temper and controlling nature, the marriage had been called off and

Sobrio had sneaked out of Tucker’s residence at night and returned to Utah. The

application stated that Sobrio would be willing to testify against Tucker. Detective

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Maricelli also stated in the application that he was in constant contact with Sobrio and

could reach her if needed for further information.

¶7 The application also noted that Sobrio informed Maricelli that she assisted Tucker

in the distribution of a defamatory letter, similar to the one distributed regarding Belker,

only this time directed at the Frenchtown Fire Chief, Scott Waldron. Sobrio claimed that

Tucker wrote the letter at his residence on either the family computer or his laptop, and

she drove his vehicle while he distributed the letters around the Frenchtown area. The

application stated that Maricelli contacted Waldron and confirmed that such a letter had

been distributed. Waldron provided Maricelli with a copy of the letter and Maricelli

attached a copy to the application.

¶8 The application attached photographs of, and described in detail, Tucker’s

residence on Pond Road in Frenchtown and the structures found on the land, including

the trailer noted by Sobrio. Detective Maricelli stated that he had confirmed Tucker

resided at the Pond Road residence, as it was the same address Tucker had provided for

his sex offender registration. Based on the foregoing information and his knowledge and

experience, Maricelli believed that a search of Tucker’s residence would result in

locating not only evidence of the Belker letter, including the computer used in its

creation, but also child pornography.

¶9 District Court Judge John Larson reviewed and approved the application for a

search warrant on December 4, 2002. The following day, Detective Maricelli and four

other law enforcement officers searched Tucker’s residence, and seized numerous

pornographic videotapes and magazines, as well as several computer disks that were later

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determined to contain child pornography. Copies of the Belker letter were also found in

the search, although Tucker was ultimately not charged with criminal defamation.

¶10 On August 28, 2003, the State charged Tucker by Information with one count of

sexual abuse of children, in violation of § 45-5-625, MCA, as a result of images found on

the seized computer disks. The State filed an Amended Information on January 27, 2004,

charging Tucker with thirty-four counts of sexual abuse of children. This Amended

Information resulted from a further review of compact discs seized in the December 5,

2002 search of Tucker’s residence. A second Amended Information followed on

February 3, 2004, which detailed the grounds for each separate count against Tucker.

¶11 A series of procedural motions followed, including two versions of a motion to

suppress the evidence seized during the December 5, 2002 search of Tucker’s residence.

Tucker contended that the December 4, 2002 application for search warrant failed to

establish probable cause to issue a search warrant because it contained insufficient facts

and did not meet the criteria set out by this Court in State v. Reesman, 2000 MT 243, 301

Mont. 48, 10 P.3d 83 (overruled in part by State v. Barnaby, 2006 MT 203, 333 Mont.

220, 142 P.3d 809). Days before the scheduled trial date, the District Court denied

Tucker’s motion to suppress. The court concluded that based on the totality of the

circumstances, there was sufficient probable cause in the application for search warrant.

¶12 The District Court held a jury trial on August 29-30, 2005, and the jury found

Tucker guilty on thirty of the thirty-four counts of sexual abuse of children. The District

Court sentenced Tucker on March 2, 2006, to ten years on each count with all but thirty

years suspended. This appeal followed.

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 STANDARD OF REVIEW

¶13 We review a district court’s denial of a motion to suppress to determine whether

the court’s findings of fact are clearly erroneous and whether its interpretation and

application of the law are correct. State v. Zito, 2006 MT 211, ¶ 6, 333 Mont. 312, ¶ 6,

143 P.3d 108, ¶ 6. 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. Beaupre,

2004 MT 300, ¶ 17, 323 Mont. 413, ¶ 17, 102 P.3d 504, ¶ 17. We review a district

court’s denial of an evidentiary hearing for a clear abuse of discretion. State v. Schulke,

2005 MT 77, ¶ 10, 326 Mont. 390, ¶ 10, 109 P.3d 744, ¶ 10. Claims of ineffective

assistance of counsel are mixed questions of law and fact that we review de novo.

State v. Trull, 2006 MT 119, ¶ 9, 332 Mont. 233, ¶ 9, 136 P.3d 551, ¶ 9.

DISCUSSION

¶14 Issue One. Did the District Court err in concluding there was sufficient
probable cause in the application for search warrant when it denied Tucker’s
motion to suppress?

¶15 Tucker argues that the facts in the application were not sufficient to establish

probable cause regarding possession of child pornography because the police failed to

corroborate information provided by what Tucker claims were two unreliable sources.

Tucker contends that law enforcement failed to corroborate any of the information

supplied by Belker and only corroborated the information provided by Sobrio about the

letter regarding Fire Chief Waldron.

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¶16 An application for a search warrant must state facts sufficient to show probable

cause to believe an offense has been committed and that evidence of the crime may be

found in the place to be searched. Section 46-5-221, MCA; State v. Barnaby, 2006 MT

203, ¶ 30, 333 Mont. 220, ¶ 30, 142 P.3d 809, ¶ 30; State v. Reesman, 2000 MT 243,

¶ 24, 301 Mont. 48, ¶ 24, 10 P.3d 83, ¶ 24. We have adopted the “totality of the

circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983), to

evaluate whether probable cause supported the issuance of a warrant. Zito, ¶ 7; Barnaby,

¶ 29. Under the totality of the circumstances test, the issuing judicial officer must make a

practical, common sense determination, given all the evidence contained in the

application for a search warrant, whether a fair probability exists that contraband or

evidence of a crime will be found in a particular place. Zito, ¶ 7; Barnaby, ¶ 29; Gates,

462 U.S. at 238, 103 S. Ct. at 2332.

¶17 A determination of probable cause does not require facts sufficient to make a

showing of criminal activity, rather, the issuing judicial officer must only determine that

there exists a probability of criminal activity. Barnaby, ¶ 30. Probable cause must be

determined solely from the information contained within the four corners of the search

warrant application. Zito, ¶ 9; Barnaby, ¶ 30. Furthermore, as a reviewing court, we

must likewise look solely to the four corners of the search warrant application to

determine if probable cause existed. State v. Morse, 2006 MT 54, ¶ 12, 331 Mont. 300,

¶ 12, 132 P.3d 528, ¶ 12. Our function as a reviewing court is to ensure ultimately that

the issuing judicial officer had a “substantial basis” to determine that probable cause

existed. Barnaby, ¶ 30; Reesman, ¶ 19. However, it is critical that an issuing judicial

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officer’s determination that probable cause existed be paid great deference and every

reasonable inference possible be drawn to support that determination of probable cause.

Zito, ¶ 8.

¶18 We have employed the Reesman test to determine whether a search warrant

application was supported by probable cause. The Reesman test can be summarized as

follows:

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.

Beaupre, ¶ 38.

¶19 We reexamined Reesman in Barnaby, and modifying the requirements mandated

by the Reesman test, said “[t]he critical question when evaluating probable cause is not

whether an individual report meets the requirements of a particular test, but whether the

application as a whole states sufficient facts to support a determination of probable

cause.” Barnaby, ¶ 39. To that end, we must determine whether all the information

found in the application amounted to a substantial basis for determining whether probable

cause supported the issuance of the search warrant. Barnaby, ¶ 39. To facilitate this

determination, we relaxed Reesman’s “strict rules” requiring independent police

corroboration, as the totality of the circumstances test established in Gates requires

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greater flexibility. Barnaby, ¶ 41. Independent police corroboration remains a key

element in determining whether probable cause exists but we recognized in Barnaby that

independent police work is not the only method of corroboration under the totality of the

circumstances test. Barnaby, ¶ 42. However, Reesman “still provides useful guidelines

to evaluate a warrant application . . . .” Barnaby, ¶ 41.

¶20 Turning to those guidelines, in situations where a search warrant application is

based on information provided by an informant, the first inquiry is whether the informant

was anonymous. Reesman, ¶ 28. If the informant is anonymous, then the information

must be corroborated. Reesman, ¶ 28. Here, neither Belker nor Sobrio were anonymous.

Belker was expressly named in the application and Sobrio was identified as Tucker’s ex-

fiancée and the application indicated that Detective Maricelli could contact her if law

enforcement required additional information. Further, Sobrio expressed her willingness

to testify against Tucker, as noted in the search warrant application.

¶21 Having determined that neither informant was anonymous, the next inquiry is

whether the informant’s information was based on personal observation or hearsay.

Beaupre, ¶ 38; Reesman, ¶ 29. “The first-hand report of a concerned citizen generally

represents reliable information.” Barnaby, ¶ 31. If the information is based on the

informant’s personal observation, we then address the informant’s reliability. Beaupre,

¶ 38; Reesman, ¶ 31. If the information is not based on personal observation, then

corroboration is required. Beaupre, ¶ 38; Reesman, ¶ 30. However, “[t]he fact that the

application for a warrant did not include a specific account of the circumstances under

which some informants viewed the events, or whether the two citizens based their reports

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on personal observations, does not preclude a court from finding probable cause.”

Barnaby, ¶ 46. In regard to corroboration, we have stated that it must “reveal indicia of

human conduct that becomes suspicious when viewed in conjunction with the

incriminating information received from the informant.” Zito, ¶ 12.

¶22 Belker disclosed that he believed that Tucker was responsible for distributing the

slanderous letter. Belker based this suspicion on his prior relationship with Tucker when

Belker hired Tucker to do drywall work, the difficulties that ensued when Tucker failed

to complete the work in a timely manner, and that Belker was currently involved in a

criminal trial over this dispute. This historical information about the parties’ previous

relationship was based on personal knowledge. In regard to the information provided by

Belker about his awareness of Tucker’s discharge from employment at the Frenchtown

High School due to Tucker’s status as a registered sex offender, Officer Maricelli

corroborated this in part by determining that Tucker was, in fact, a registered sex

offender. We have held that a person’s criminal history is “one of the many factors to be

considered under the totality of the circumstances test.” Zito, ¶ 16 (internal quotation

marks omitted). The application also stated that Belker related how his wife, Virginia,

discovered Tucker in their daughter’s bedroom with a pair of her underwear in his hand,

“and didn’t seem to have a reasonable answer as to why he was in the bedroom with the

door closed.” Tucker argues this information was hearsay and that the application

contains no confirmation of these statements by Virginia. However, the application did

contain information of a similar nature provided by Sobrio. She reported that she had

discovered young girl’s panties and undergarments in Tucker’s possession in his

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bedroom and trailer, thus providing consistent “indicia of human conduct” which had the

corroborative effect of making Virginia’s statements more probable and the alleged

conduct more suspicious.

¶23 In regard to the information provided by Sobrio in the application, her

observations of Tucker’s possession of what she suspected to be child pornography, as

well as possession of young girl’s undergarments in his bedroom and camper-trailer,

were personal observations. Tucker argues that law enforcement failed to corroborate the

child pornography report, but because Sobrio’s information was based on personal

observations, and assuming she was a reliable source, discussed below, further

corroboration would not have been necessary. Even so, Maricelli’s investigation

revealed Tucker to be a registered sex offender, and the panties incident in the Belkers’

daughter’s bedroom provided corroborative support which enhanced the probability that

Sobrio’s observations about child pornography were true. The application also detailed

how Sobrio stated that she had assisted Tucker in distributing a defamatory letter against

Fire Chief Waldron. Sobrio’s observations and information in this regard were also

based on personal experience and, again assuming her reliability, required no

corroboration. Nonetheless, Detective Maricelli corroborated the report about the

Waldron letter by contacting Waldron and obtaining a corroborative report. The Waldron

letter incident also served to corroborate Belker’s report concerning his belief that Tucker

was behind the similarly distributed letter about Belker. The fact that Tucker had

distributed by hand a critical letter similar to the Belker letter would supply the issuing

judicial officer with an indicia of human conduct making Belker’s report more probable.

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¶24 The third step in the Reesman analysis is whether or not Belker and Sobrio were

reliable informants. There are three categories of informants for the purposes of

determining reliability: (1) confidential informants; (2) informants who make an

admission against interest; and (3) concerned citizens. State v. Palmer, 2003 MT 129,

¶ 18, 316 Mont. 46, ¶ 18, 68 P.3d 809, ¶ 18. A confidential informant is not deemed

reliable unless the informant has given reliable and accurate information in the past.

Palmer, ¶ 18. If an informant makes an unequivocal admission against interest, further

corroboration is not required. Palmer, ¶ 18. “Finally, informants motivated by ‘good

citizenship’ are deemed reliable if they provide information that demonstrates a sufficient

degree of the nature of the circumstances under which the incriminating information

became known.” Palmer, ¶ 18.

¶25 Here the application “contained the necessary information to establish the reason

for [the informants’] personal exposure to the evidence,” as well as their motivation in

going to the police. Beaupre, ¶ 47. Belker was not a confidential informant because he is

identified by name in the application. Belker was an apparent victim who was acting as a

concerned citizen when he provided the information to the police about Tucker, and there

is nothing in the record to the contrary. Belker had hired Tucker to perform work on the

Belkers’ home. Based on Belker’s personal experience with Tucker, his wife’s report

about the underwear incident, and his knowledge that Tucker blamed him for Tucker’s

loss of employment at the Frenchtown High School due to Tucker’s status as a sex

offender, Belker had reasonable grounds on which to report his belief that Tucker was

behind the defamatory letter. Because Belker was acting as a concerned citizen in

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reporting this information to the police, he was a reliable informant and further

corroboration was not required.

¶26 While Sobrio was not identified by name in the application, she was identified as

Tucker’s ex-fiancée and likewise cannot be classified as a confidential informant. She

gained knowledge about the evidence stated in the application from her personal

experience. She sent an unsolicited letter about Tucker to the county attorney’s office

and expressed her willingness to return to Montana and testify against Tucker. Sobrio

was Tucker’s fiancée and lived at Tucker’s residence for a number of months. While

living there, she personally observed that he possessed a large quantity of pornography.

Sobrio eventually discovered that Tucker also possessed a number of young girl’s

undergarments, as well as what she suspected to be child pornography. Based on the

foregoing information, it is clear Sobrio acted as a concerned citizen in reporting the

information to law enforcement. In addition, Sobrio made an admission against interest

when she stated that she assisted Tucker in the distribution of the defamatory letter

against Fire Chief Waldron. Thus, Sobrio was properly considered a reliable informant.

¶27 The question is then whether the application as a whole supports a determination

of probable cause. Barnaby, ¶ 42. Based on the totality of the circumstances, the issuing

judicial officer had a substantial basis to determine that probable cause existed to search

Tucker’s residence given the information and evidence contained in the application. As

both Belker and Sobrio were acting as concerned citizens (and in the case of Sobrio,

making an admission against interest), they were both reliable informants. Further, even

assuming that any additional corroboration was necessary, this was satisfied for the

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reasons discussed herein. The reports of Belker and Sobrio corroborated each other and

Detective Maricelli further corroborated their information by confirming that Tucker was

a registered sex offender and that he and Sobrio distributed the Waldron letter. We

conclude that the application demonstrated the necessary probable cause and that the

District Court properly denied Tucker’s motion to suppress.

¶28 Issue Two. Did the District Court abuse its discretion in failing to conduct a
hearing on Tucker’s motion to suppress, pursuant to § 46-13-302(2), MCA?

¶29 Tucker claims that the District Court abused its discretion and committed

structural error when it failed to hold a suppression hearing in accordance with § 46-13-

302(2), MCA. A review of the procedural facts surrounding Tucker’s motion to suppress

is necessary to address this issue.

¶30 On June 1, 2004, Tucker filed a motion to suppress the evidence seized in the

December 5, 2002 search, on the ground the warrant “lacked sufficient probable cause to

believe that an offense had been committed and that evidence connected with the offense

may be found at Tucker’s residence.” This motion was filed through Tucker’s second

counsel of record, Margaret Borg. Tucker subsequently became dissatisfied with Borg as

his counsel and filed a pro se motion to dismiss on July 19, 2004. The court held an

evidentiary hearing on October 20, 2004, regarding Tucker’s pro se motion to dismiss

and other outstanding motions, but announced it would not rule on the June 1, 2004

motion to suppress prepared by Borg because Tucker stated he was “appalled at its

incompleteness.” Borg withdrew as Tucker’s counsel and he subsequently waived his

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right of counsel. The court appointed Michael Bailey as standby counsel for Tucker and

Bailey was ultimately appointed as Tucker’s attorney on February 10, 2005.

¶31 On August 15, 2005, two weeks before the scheduled trial date, Tucker’s new

counsel filed another motion to suppress the evidence seized in the December 5, 2002

search. At an August 16, 2005 conference, the District Court announced that because

Tucker’s motion was focused on the four corners of the application, a factual hearing

would not be necessary, and the court did not hold one. The District Court ultimately

denied Tucker’s motion to suppress as it concluded there was sufficient probable cause in

the application.

¶32 Turning to Tucker’s argument, in reference to a motion to suppress, § 46-13-

302(2), MCA, states: “If the motion states facts that, if true, would show that the

evidence should be suppressed, the court shall hear the merits of the motion at the

omnibus hearing or at a later date if the court orders.” Tucker argues that the language of

this statute is “mandatory” and that the District Court did not determine whether the facts

alleged in his motion to suppress, if true, were sufficient to warrant suppression. Tucker

asserts that because the District Court failed to conduct a hearing, he was prejudiced as he

would have had the opportunity to show “that both informants had vindictive motives to

provide false information, or even ‘set up’ the Appellant.” Tucker further claims that the

failure to hold a hearing amounted to structural error and was presumptively prejudicial.

¶33 The State counters by arguing that Tucker based his motion to suppress on the

theory that the application did not establish probable cause, which the State claims is a

legal question that does not require a hearing. The State argues that when a defendant

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challenges whether probable cause was established within the four corners of the search

warrant application, as Tucker has done, § 46-13-302(2), MCA, is not implicated and,

unless Tucker attempted to make a preliminary showing that a false statement had been

made, a hearing was not required. The State contends that as Tucker did not attempt to

make this showing in either of his motions to suppress, the District Court had no

obligation to hold a hearing.

¶34 Except as where required by statute, a district court has discretion in holding a

hearing on the merits of a motion. Section 46-13-104(2), MCA. Section 46-13-302(2),

MCA, encompasses all motions to suppress evidence obtained by an allegedly unlawful

search and seizure. See § 46-13-302(1), MCA. An evidentiary hearing would be

required under 46-13-302(2), MCA, if the defendant’s suppression motion “states facts

that, if true, would show that the evidence should be suppressed . . . .” State v. Schulke,

2005 MT 77, ¶ 28, 326 Mont. 390, ¶ 28, 109 P.3d 744, ¶ 28. However, an evidentiary

hearing is unnecessary where the facts are uncontested and the court is asked to make a

decision as a matter of law. Schulke, ¶ 28. In Franks v. Delaware, 438 U.S. 154, 98

S. Ct. 2674 (1978), the Supreme Court determined that a defendant may challenge the

truthfulness of the factual statements made in an application for a search warrant.

Franks, 438 U.S. at 164-65, 98 S. Ct. at 2681. We employ the Franks procedure for

challenging the truthfulness of factual statements made in a search warrant application, as

modified by this Court in State v. Worrall, 1999 MT 55, 293 Mont. 439, 976 P.2d 968.

¶35 Under the Franks procedure, the defendant must first make a substantial

preliminary showing that false information was included in the search warrant

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application. State v. Minez, 2004 MT 115, ¶ 22, 321 Mont. 148, ¶ 22, 89 P.3d 966, ¶ 22.

To make the required substantial preliminary showing, the defendant must provide more

than mere conclusory statements. Minez, ¶ 21. The substantial preliminary showing may

be made by providing “an offer of proof containing affidavits, sworn testimony or other

reliable witness statements which tend to prove the falsity of the information contained

within the warrant application.” Minez, ¶ 23. If the defendant makes this showing, then a

hearing must be held at the defendant’s request. Minez, ¶ 23. The defendant must prove

by a preponderance of the evidence that the statement was false. State v. Clifford, 2005

MT 219, ¶ 58, 328 Mont. 300, ¶ 58, 121 P.3d 489, ¶ 58. If the defendant proves the

statement is false, the offending material is excised, and the application is reviewed to

determine whether probable cause continues to exist. Minez, ¶ 20. If probable cause

does not continue to exist, the search warrant must be voided, and the fruits of the search

excluded. Minez, ¶ 20.

¶36 Applying this procedure, Tucker failed to make any preliminary showing, let alone

a substantial preliminary showing, of a false statement in his motion to suppress. The

central claim of both Tucker’s June 1, 2004 and August 15, 2005 motions to suppress is

that the application did not contain facts sufficient to establish probable cause for the

issuance of a search warrant. Nowhere in either motion is there any claim that the

application contained false statements of fact. Although Tucker expressed his

dissatisfaction with the first motion at the October 20, 2004 hearing and claimed that “all

the statements used by the officer to obtain the search warrant are false,” the revised

August 15, 2005 motion did not contain any such allegation. At the August 16, 2005

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conference regarding Tucker’s renewed motion to suppress, Tucker’s counsel Michael

Bailey acknowledged that the court’s review was limited to the four-corners of the

application. Judge Larson later stated, “I still hear that we’re focused on the application,

the four corners of the application, so a factual hearing really isn’t necessary, and Mr.

Bailey, I assume, has raised all the arguments he’s going to raise in his initial brief.”

Based on the plain language of both motions and the subsequent discussion at the

conference, it is clear that Tucker did not challenge the truthfulness of any factual

statement in the application.

¶37 Because Tucker challenged whether probable cause was established within the

four corners of the search warrant application, but failed to make any preliminary

showing of a false statement in the application, § 46-13-302(2), MCA, did not require the

District Court to hold a hearing and apply a Franks analysis. As such, it was a matter of

discretion for the District Court to order a hearing on Tucker’s motion to suppress and the

District Court did not abuse that discretion. Further, because the District Court was not

required to hold a hearing on Tucker’s motion, we need not address Tucker’s contention

that this constituted “structural error.”

¶38 Finally, we also reject Tucker’s contention that “the mandatory language of [§ 46-

13-302(2), MCA] suggests that the district court should enter an explicit finding when it

declines to conduct a suppression hearing.” (Emphasis added.) Tucker cites no legal

authority for this proposition, and our review of the language of the statute does not

reveal the suggestion Tucker sees there, even if such a finding would be helpful. We

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hold that the District Court did not err in failing to hold a hearing on Tucker’s motion to

suppress or to enter an explicit finding about its decision.

¶39 Issue Three. Alternatively, if it was necessary for Tucker to have requested a
hearing on his motion to suppress, did defense counsel render ineffective
assistance of counsel in failing to do so?

¶40 Tucker argues that if the District Court was not required to hold a suppression

hearing under § 46-13-302(2), MCA, then his counsel’s failure to request a hearing

constituted record-based ineffective assistance of counsel.

¶41 When reviewing ineffective assistance of counsel claims, this Court applies the

two-part test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984). Under Strickland, to prevail on an ineffective assistance of

counsel claim, the defendant must show: (1) that counsel’s performance was deficient,

and (2) that counsel’s deficient performance prejudiced the defendant. Whitlow v. State,

2008 MT 140, ¶ 10, 343 Mont. 90, ¶ 10, 183 P.3d 861, ¶ 10.

¶42 The primary question under the first prong of Strickland is “whether counsel’s

conduct fell below an objective standard of reasonableness measured under prevailing

professional norms and in light of the surrounding circumstances.” Whitlow, ¶ 20.

Counsel’s performance is strongly presumed to be within the wide range of reasonable

professional assistance, and the defendant “must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Whitlow, ¶ 21.

¶43 A petitioner must satisfy both prongs of the Strickland test to prevail on an

ineffective assistance of counsel claim. Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63,

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¶ 22, 153 P.3d 601, ¶ 22. If petitioner makes an insufficient showing as to one prong of

the test, then there is no need for the Court to address the other prong. Adams, ¶ 22.

¶44 Tucker notes that at the August 16, 2005 conference, the court informed both

parties that it would make its decision based upon the briefs. Tucker claims that

“[c]ounsel for Defendant failed to object and request a suppression hearing pursuant to

Mont. Code Ann. § 46-13-302(2).” Tucker argues that as the suppression hearing would

have been his strongest chance to demonstrate the “ill will and motives” of the two

informants and undermine their reliability, the more reasonable standard of criminal

defense practice would have been to demand a suppression hearing.

¶45 The State responds that Tucker has failed to satisfy the first prong of the

Strickland test as he cannot demonstrate that his counsel was deficient for failing to

request a hearing when the existing case law does not allow such a hearing. We agree

with the State that counsel’s performance was not deficient. For the reasons enumerated

in Issue Two, the District Court was not required to hold a hearing on Tucker’s motion to

suppress. Although Tucker asserts a desire to challenge the “ill will and motives” of the

informants, he nonetheless has not stated a challenge to the truthfulness of any of the

factual statements in the application. Because Tucker is not invoking a Franks challenge

to the application, counsel had no basis to request such a hearing. Tucker’s motion to

suppress was premised on the assertion that the application did not contain facts

sufficient to establish probable cause. As this is a legal question that can be answered

based on the four corners of the application, a suppression hearing was not necessary and

defense counsel was not required, nor was there any need, to request a hearing.

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¶46 Because Tucker has failed to satisfy the first prong of the Strickland test, we need

not address whether the alleged deficiency prejudiced Tucker. Adams, ¶ 22. We hold

that Tucker’s counsel did not render ineffective assistance when he failed to request a

hearing on Tucker’s motion to suppress.

¶47 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS

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