State v. Baldwin

JUSTICE McDONOUGH

dissenting:

I disagree. The application for the search warrant fails to establish probable cause which must be shown before the government can legally search a citizen’s home and personal effects.

The duty to conduct evaluations of evidence supplied by law enforcement authorities and to determine whether permission to search a citizen’s home should be given, belongs to the judiciary. In making this determination the courts examine the “totality of the circumstances” surrounding the State’s allegations in the application for the search warrant. Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527; State v. Kelly (1983), 205 Mont. 417, 668 P.2d 1032. The courts should only give permission to conduct a search when these “circumstances” establish probable cause.

Probable cause, which defines the point at which the individual’s interest in privacy must yield to the governmental interest in investigating criminal behavior, is a practical, nontechnical concept of criminal procedure. It is not a prima facie showing of criminal activity, but rather only requires a showing of its probability. State v. Sundberg (Mont. 1988), [235 Mont. 115,] 765 P.2d 736, 45 St.Rep. 2235. In order to determine whether there was probable cause to issue a search warrant, we must look only at information contained in the four corners of the application. State v. Jensen (1985), 217 Mont. 272, 704 P.2d 45. An examination of the application in the present case leads to the conclusion that sufficient probable cause did not exist.

An application in the form of an affidavit for a search warrant, must set forth facts which demonstrate that a law is being violated at the time the warrant is issued. State v. Walston (Mont. 1989), [236 Mont. 218,] 768 P.2d 1387, 46 St.Rep. 309. One reason for this rule is to prevent present or continuing harassment of a suspect due to past criminal allegations or transgressions. The police should not be given blanket authority to search a citizen’s home on the basis of allegations which do not support the conclusion that criminal activ*187ity is presently occurring. The facts here do not support such a conclusion and were, therefore, improperly relied upon.

The application contains references to numerous instances of unlawful involvement with drugs by the appellant. However, the allegations contained in these references occurred long before the search warrant was issued. For example, the application states that in 1983, the appellant was involved in the importation of cocaine. It also contains an allegation made by Baldwin’s ex-wife, during a bitterly contested divorce proceeding in 1984, that he “is and always has been a drug dealer.”

The search warrant was issued on October 3, 1988. Therefore, the above two allegations, which were made approximately four years earlier, do not establish that appellant was involved in any illegal activity in close proximity to the time of the issuance of the warrant. The other alleged, instances of criminal activity occurred months before the search warrant was issued. According to the application, the Flathead County Attorney received an anonymous tip concerning appellant’s illegal activities on February 25, 1987. This tip was given almost two years before his house was searched. The final observation of appellant’s alleged marijuana operation apparently occurred in October or November of 1987 — a full year before the search occurred.

This information is not sufficient to establish probable cause and therefore is not legally sufficient to uphold the search warrant. Before a search warrant can be issued, it is incumbent upon the State to show that the alleged criminal conduct is occurring at the present time. State v. Walston (Mont. 1989), [236 Mont. 218,] 768 P.2d 1387, 46 St.Rep. 309.

A further shortcoming of the application is its failure to set forth factors apprising the court of the anonymous informant’s reliability. According to the application, the investigating officer relied upon information obtained through a “confidential informant.” The affidavit does not, however, contain any information which would tend to bolster the informant’s credibility or apprise the court of the officer’s reasons for believing the informant was trustworthy. Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; State v. Seaman (Mont. 1989), [236 Mont. 466,] 771 P.2d 950, 46 St.Rep. 512.

This omission is a major flaw to the affidavit. The information was obtained by the informant through a friend. Apparently, the informant never personally observed the marijuana growing operation. De*188spite the inherently unreliable nature of this hearsay, the investigating officer never offered any evidence establishing the informant’s basis of knowledge or reliability.

In lieu of this information, the officer sought to corroborate the anonymous tip with independent evidence obtained through the power company and the appellant’s financial records. During this investigation, the police officer misread a term in a contract for deed and as a result of this mistake, wrongfully apprised the court of the appellant’s financial condition. This mistake, which significantly exaggerated the amount of money spent by the defendant, requires that all references to his financial dealings be excised from the affidavit. This information cannot be used to establish probable cause on the later motion to suppress before the District Court. State v. Nanoff (1972), 160 Mont. 344, 502 P.2d 1138; Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 631.

The investigating officer also subpoenaed the appellant’s utility records. These records indicated that the appellant consumed an unusually large amount of electricity. Because an indoor marijuana growing operation uses high-powered solar lamps, the investigating officer reasoned that this high electricity use was indicative of such illegal activity. This information was included within the affidavit to bolster the information supplied by the anonymous tip. The officer also, through a personal viewing of the house, observed ventilating fans on the shop.' These fans, it is argued, further corroborate the belief that the appellant had a large scale growing operation.

However, this information alone does not establish the probability of any illegal activity. The electrical consumption and the ventilating fans are equally indicative of normal, everyday activity, such as a home welding operation. The officer failed to compare the appellant’s electrical consumption with that of the previous owners and therefore failed to satisfactorily establish that the power usage was extraordinarily high. This information has at best, only minor corroborative effect.

As a whole, the information contained in the affidavit, after examining the “totality of the circumstances,” does not establish probable cause. The false financial information indicating the appellant had access to large sums of money was properly excised from the affidavits. However, the stale information contained within the application, which was at least a year old, was improperly relied upon. Had this information been properly excised, the affidavit would not have met the “totality of the circumstances” test. When this infor*189mation is taken out, the only facts left which provide any indication of illegal activity, are that the appellant used a large amount of electricity, that his garage was equipped with an extensive ventilating system and the statement of a neighbor that the appellant operated no commercial enterprise on his property. This information under a “totality of the circumstances” analysis does not meet the standard necessary to allow the government to search a citizen’s home.

The application for the search warrant is insufficient as a matter of law, because it relies upon stale information which is several years old, a mistaken reading of the appellant’s financial records, and unsubstantiated rumors. This is inherently weak evidence and it does not meet the necessary threshold of probable cause. Therefore, this case should be reversed and remanded with instructions to suppress the evidence seized pursuant to the issued search warrant.

JUSTICES HUNT and SHEEHY concur in the foregoing dissent.