State v. Kelly

No. 82-178

I N THE SUPREME COURT O THE STATE OF MONTANA
F

1983

STATE O MONTANA,
F

F l a i n t i f f and Respondent,

JAMES KELLY,

Defendant and Appellant.

APPEAL FROM: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f G a l l a t i n ,
The H o n o r a b l e J o s e p h B. Gary, J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

A n d e r s o n , Edwards & Molloy; R i c h a r d W. Anderson a r g u e d
B i l l i n g s , Montana

For Respondent:

Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
S a r a h Power a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
A. M i c h a e l S a l v a g n i , County A t t o r n e y , Bozeman,
Montana: R o b e r t T h r o s s e l l , Deputy County A t t y .

Submitted: May 2 6 ,

Decided: August 29, 1983

Filed: AUG 2 9 1983
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant appeals from a conviction of criminal
possession of dangerous drugs with intent to sell, following
trial without jury in the Eighteenth Judicial District Court,
Gallatin County. We affirm.
Defendant raises the following issues:
1. Were the searches in Hawaii illegal and was evidence
seized as a result of those searches tainted?
2. Was the opening of the package by the Bozeman
police, and their inventory of its contents, an
unconstitutional search and an invasion of defendant's right
of privacy?
3. Did the issuing magistrate in Montana lack
jurisdiction to issue the first search warrant?
4. Was the affidavit of probable cause for the first
search warrant fatally defective:
a. Did probable cause exist for its issuance?
b. Did hearsay information supporting its issuance
render it fatally defective?
5. Did the "offense" upon which the first affidavit was
based result from entrapment, rendering the issuance of the
first search warrant improper?
On April 2, 1981, a federal agricultural inspector
(Baba) in Honolulu, conducting warrantless searches of United
Parcel Service (UPS) packages for plants, pests and diseases
under the authority of federal law, opened a box containing
what he suspected might be plants, fruits or similar items.
His suspicion was based upon the method of packaging, the
weight and wrapping of, and the addresses on the package.
The package was addressed to defendant with a return address
subsequently determined to be fictitious. He observed bricks
of a pressed substance in plastic bags, one of which he
opened and smelled an odor unlike marijuana he had smelled
before. Baba then phoned Honolulu Police Officer Hisatake
whom he knew from previous work they had done together, and
who was on airport narcotics duty. Then Baba left the open
package on the UPS conveyor in care of the UPS manager.
Approximately half an hour later, Officer Hisatake arrived at
the UPS depot and without a warrant, field-tested the slabs
of greenish substance packed beneath a newspaper and some
paperback books. The slabs were identified as marijuana in
the form of hashish. Hisatake retained about two pounds of
the substance for further lab testing. The next day he
phoned Sgt. Green of the Bozeman Police Department; the
officers agreed the UPS parcel should be mailed to the
Bozeman Police by Air Freight. This was done. The box
arrived in Bozeman April 5th (Sunday). The next day,
pursuant to telephone instructions from federal drug control
officials but without a warrant, Sgt. Green opened the box
and inventoried and tested the contents of the unsealed UPS
package addressed to defendant. The box contained about nine
pounds of hashish. Green then rewrapped and resealed the UPS
box. On April 7, the Bozeman UPS Manager, at Green's
request, delivered the package to the address on the box, the
Fox Street residence of defendant. Officers observed the
delivery, then Sgt. Green returned to a magistrate's office,
where he signed a previously-prepared affidavit describing
the delivery, and requested a search warrant for the Fox
Street house. The search warrant was granted; officers
returned and searched the house. Defendant, his wife and a
second man were present, as was a quantity of hashish (valued
at approximately $275,000) and a variety of paraphernalia --
scales, baggies (some filled with hashish) , and the unopened
UPS box. The officers arrested all three inhabitants.
Leaving the home under police surveillance, Sgt. Green
returned to the magistrate with an application for another
search warrant, based upon the unanticipated evidence
uncovered during the first search of defendant's home. The
second search warrant was issued. The evidence was
photographed, seized and conveyed to the police labs and
evidence lockers, where it remained until hearing and trial.
Defendants moved for suppression of all evidence. In
the course of an extensive suppression hearing, all motions
were denied. Just before trial, defendant's wife pleaded
guilty. Apparently the charges against the second man were
dismissed. Defendant waived his right to a jury trial. The
suppression hearing transcript was a stipulated part of the
trial transcript. The parties also stipulated that all
contraband seized was taken pursuant to the two search
warrants. The court found defendant guilty of possession of
dangerous drugs with intent to sell. Defendant appeals,
alleging that the District Court erred in refusing to
suppress tainted evidence which was the fruit of several
improper searches.
Defendant first argues that the warrantless searches and
seizure of the UPS box in Hawaii violated the United States
Constitution and the Plant Pest Acts because Baba searched
the box without probable cause and Hisatake searched and
seized the box without a warrant. He maintains that because
all subsequent discoveries and seizures were tainted by
illegal procedure in Hawaii and should have been suppressed,
his conviction must be overturned. We do not agree.
Let us first consider whether Inspector Baba improperly
searched the UPS package without a warrant. Baba was acting
pursuant to the provisions of the Federal Plant Pest Acts, 7
U.S.C.A. SS147a-167 and the Hawaiian and Territorial
~uarantine Act, 7 C.F.R. S318. These Acts provide for the
warrantless inspection of "any persons or means of
conveyance" moving into the United States, upon probable
cause to believe they are carrying or are infested with plant
pests or plant diseases.
In Camara v. Municipal Court (1967), 387 U.S. 523, 87
S.Ct. 1727, 18 L.Ed.2d 930, the Supreme Court struck down the
warrantless administrative search of buildings for housing,
health and fire code violations, holding that, in most
situations, administrative searches without warrants are
improper. But Camara noted that warrantless administrative
searches could be reasonable under some circumstances. In
United States v. Schafer (9th Cir. 1972) 461 F.2d 856, the
Circuit Court of Appeals explained why upholding a
warrantless inspection under the Plant Pest Acts was not
inconsistent with Camara. Schafer involved the search by
airline officials of the handbag of a passenger boarding a
plane bound from Hawaii to the United States. We find the
rationale persuasive here.
"In [Camara], the Court concluded that requiring
building inspectors to obtain search warrants
imposed no hardship on the conduct of their
mission. There was 'no compelling urgency to
inspect at a particular time or on a particular
day,' [387 U.S. at 539, 87 S.Ct, at 17361 as the
property to be searched was a building, obviously
not a thing susceptible to speedy removal. Here,
however, the time element is a major consideration.
The objects of the search (quarantined fruits,
vegetables and plants) can easily be transported
out of Hawaii to the continental United States by
departing tourists. The effect of such movement on
agricultural crops in the mainland states could be
serious as each of the quarantined items may carry
some form of plant disease or insect which could
destroy crops in the other areas. The purpose of
the quarantine is to avoid these effects by
preventing the movement of the potentially
dangerous plant substances. We think a search
warrant requirement would 'frustrate' the purpose
of these inspections, because of the time delays
inherent in the search warrant mechanism. Unless
all departing passengers could be detained while
warrants could be obtained, the goods would be
 moved before the warrants could issue. Whereas in
Camara there was no suggestion that 'fire, health,
and housing code inspection programs could not
achieve their goals within the confines of a
reasonable search warrant requirement.' [387 U.S.
at 533, 87 S.Ct. at 17331 we are persuaded that
requiring warrants for agricultural inspections of
this type would effectively cripple any meaningful
quarantine." Schafer, 461 F.2d at 858.
Under the administrative search principles articulated
in Camara, and the principles in See v. City of Seattle
(1967), 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, and the
numerous progeny of those two landmark cases, a government
official would be entitled to search a package without a
warrant where there was a significant public protection
involved, the intrusion was minimal, the goal was not
discovery of a crime, and the governmental purpose would be
otherwise thwarted or rendered impracticable by requiring a
search warrant. All of these elements are present, making
Baba's search a reasonable administrative search.
Defendant argues that regardless of the exigencies of
the situation, Baba acted without probable cause to believe
this particular package contained plant pests or diseases.
The probable cause requirement relative to administrative
searches is less stringent than that relative to criminal
investigations and " [i]f a valid public interest justifies
the intrusion contemplated, then there is probable cause to
issue a suitably restricted search warrant." Camara, 387
U.S. at 539, 87 S.Ct. at 1736, 18 L.Ed.2d at 941. See also
Marshall v. Barlows, Inc. (1978), 436 U.S. 307, 98 S.Ct.
1816, 56 L.Ed.2d 305. The State argues that If [hlere, where
the warrant requirement is vitiated by the necessity and
urgency of immediate inspection, probable cause exists and a
valid public interest justifies the intrusion." The State
relies upon another 9th Circuit decision, upholding screening
of airline passengers for weapons and explosives, which
recognized that:
"...[S]earches conducted as part of a general
regulatory scheme in furtherance of an
administrative purpose, rather than as part of a
criminal investigation to secure evidence of
crime, may be permissible under the Fourth

-
or
vis
sis
added) .
Moreover, although Baba characterized his search as "random"
at trial, his testimony established that he searched only
parcels which were unusually heavy and sent by individuals to
individuals (as opposed to businesses, etc.). In his
experience, those parcels were more likely to contain plants
carrying pests or diseases. Thus his search was not a random
search but was directed at parcels which by their packaging
were more likely to contain items with disease or insects.
This, along with the compelling need to find and interrupt
the shipment of infested parcels, is sufficient to establish
the probable cause contemplated by the Plant Pest Acts.
Defendant next argues that, even if Baba's search of the
UPS box was reasonable, Hisatake's subsequent warrantless
search and seizure of the box was a violation of Fourth
Amendment guarantees. Since Baba had already interrupted
UPS'S delivery of the package, defendant argues that the
exigencies which justified Baba's warrantless search no
longer applied, and Hisatake should have obtained a warrant.
We reject this argument. Baba, not Hisatake, seized the
UPS package legitimately under the "plain view" rule, which
permits warrantless seizure of evidence of crime
inadvertently discovered by police in the course of a valid
search. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91
S.Ct. 2022, 29 L.Ed.2d 564. In his exhaustive study of the
requirements of the Fourth Amendment, Professor Wayne LaFave
summarizes the Coolidge plain view rule:
"[Tlhe plain view doctrine discussed in Coolidge is
intended to provide a basis for making a seizure
without a warrant. The fact that there is a plain
view in the Coolidge sense does not mean that there
has been no search; indeed, the situations
described by Justice Stewart are in the main search
situations--search pursuant to a warrant naming
other objects, search during hot pursuit, search
incident to arrest, and a search for purposes other
than finding evidence. Rather, the effort in
Coolidge is to describe when items so found may be
seized even though they were not the items which
were legitimate objectives of that search. The
Coolidge plurality identifies three requirements:
(1) there must be a prior valid intrusion; (2) the
discovery of the seized items must be inadvertent;
and (3) it must be immediately apparent to the
police that they have evidence before them." W.
LaFave, SEARCH AND SEIZURE, §2.2(a) at 241-42
(1978).
The Supreme Court's recent decision, Texas v. Brown, No.
81-419 (U.S. April 19, 1983), reiterates the rule that "if,
while lawfully engaged in an activity in a particular place,
police officers perceive a suspicious object, they may seize
it immediately." Slip opinion at 8. Brown also relaxes rule
(3) stated above. Where under Coolidge, it must be
"immediately apparent to the police that they have evidence
before them," under Brown, probable cause to support a
warrantless seizure of evidence in plain view is supplied by
"[a] 'practical, nontechnical' probability that incriminating
evidence is involved." Slip opinion at 11.
Baba's conclusion that the contents of the UPS box were
marijuana was sufficient under Brown to justify seizure. He
was a plant inspector for the Department of Agriculture.
Moreover, although Baba was not technically a "police
officer," he was a government official acting pursuant to
federal law in seizing unauthorized plant substances
uncovered by his search.
 We hold that Baba's search was a valid administrative
search pursuant to standards articulated in Camara and
Schafer, and his seizure of the UPS box and its contents
pursuant to federal statutes and the plain view rule
discussed in Coolidge and Brown, did not violate defendant's
Fourth Amendment rights.
In Brown, the Supreme Court also stated:
" [Wlhen a police officer has observed an object in
'plain view,' the owner's remaining interests in
the object are merely those of possession and
ownership." Slip opinion at 7-8.
In other words, once Baba had recognized and seized the UPS
box and its contents, defendant had no further grounds for
claiming that any reasonable expectation of privacy in them
was offended by either Hisatake's inspection and testing of
the box's contents or Sgt. Green's further inspection and
testing in Bozeman. The Constitution requires that, before
the initial search and seizure, the "deliberate impartial
judgment of a judicial officer . . . be interposed between
the citizen and the police." Katz v. United States (1967),
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. It does not
require that a magistrate's judgment be interposed between
every transfer of evidence between officers or between law
enforcement agencies once the evidence has been legitimately
seized. Such a requirement would be absurd and would imply a
continued privacy interest in the defendant after valid
seizure of incriminating evidence.
In United States v. Andrews (10th Cir. 1980), 618 F.2d
646, the Circuit Court of Appeals considered whether, after
a controlled delivery, a federal drug enforcement agent was
required to secure a search warrant before reopening the
package containing cocaine at the delivery point. The
package, bound for Denver, had been opened by a suspecting
cargo supervisor for Continental Air Cargo Service in Miami
and field-tested by detectives the supervisor called. The
detectives removed some of the cocaine, resealed the package
and sent it to Denver on a Continental flight. In Denver,
an alerted Drug Enforcement Administration (DEA) official
took custody of the package and placed it in a Continental
freight vault overnight. Wearing a freight clerk's uniform,
he released the package the next morning to the defendant,
who was arrested by DEA officials. The agent regained
custody of the package and returned to the DEA office, where
he opened it and removed the cocaine. The trial court
granted defendant's motion to suppress. The Circuit Court of
Appeals reversed, holding that:
" [TIhe police seizure [in Miami] was made
upon probable cause and under exigent
circumstances. Thus, the shipment of the
package to Denver, its delivery over to
Andrews there, and its subsequent taking
away from Andrews were . . . actions
constituting . . . 'official dominion
continued unbroken because close
surveillance followed the seized
contraband, insuring that it remain
within official possession."' 618 F.2d
at 654.
See also United States v. Ford (10th Cir. 1975), 525 F.2d
1308. In both Ford and Andrews, where the initial seizure
was legitimate, controlled delivery by private carrier and
resumption of custody after delivery was held to amount to
continued "official dominion," so that it was not necessary
to obtain a search warrant before the container was regained
and opened by officials after delivery.
In Andrews and Ford, the initial search was private and,
under applicable law, did not involve the Fourth Amendment as
it would have in Montana. In this case, the initial search
and seizure in Hawaii was valid under Camara and Coolidge and
did not offend the Fourth Amendment. In all three cases,
government dominion over evidence was legitimately obtained
and effectively continued during a controlled delivery, and
there was no need to procure warrants for each successive
exercise of custody and inspection of the evidence. Indeed,
here a search warrant was obtained after delivery; in Ford
and Andrews, the defendant and contraband were seized without
warrants, shortly after delivery.
We hold that, since Baba's administrative search and
seizure did not violate the Fourth Amendment, no privacy
interest of defendant was violated by Hisatake's inspection
in Honolulu or Green's later inspection in Bozeman. Thus,
the procedures in Hawaii, and the inspection by Green in
Bozeman, do not require suppression of the evidence obtained
by the Bozeman searches.
Our conclusion as to this issue also resolves the second
issue raised by defendant. Because government dominion over
the box "continued unbroken" for all reasonable purposes,
from its valid seizure by Baba in Hawaii to its delivery in
Bozeman and during that period of dominion, the box could be
inspected without a warrant.
Defendant's third issue is that the magistrate who
issued the first search warrant in Montana lacked
jurisdiction to do so, because the affidavit established that
any criminal activity began and ended in Hawaii.
It is true that a justice court's criminal jurisdiction
is limited under section 3-10-303, MCA, to crimes committed
in its county. It is also true that under section
46-1-201(7), MCA, the offenses stated in the affidavit must
be violations of the laws of this state or its political
subdivisions. Obviously, if the only crime alleged had been
committed in Hawaii, the Montana magistrate would have been
without jurisdiction to issue a warrant.
 We hold there is no jurisdictional question here. The
affidavit did not explicitly name the offense, but the facts
stated clearly indicated that the suspected offense was
possession of dangerous drugs which is a violation of Montana
law under Title 45, Chapter 9, MCA. The affidavit stated
that the suspected offense took place in Bozeman, Gallatin
County. Thus, it was within the magistrate's jurisdiction.
Whether the magistrate's decision to issue the warrant was
correct goes to probable cause, not jurisdiction.
The fourth issue raised by defendant is whether the
affidavit supporting the first search warrant was so
defective that the evidence uncovered and seized pursuant to
that warrant was inadmissible at trial.
Defendant argues that the affidavit failed to show that
an offense had been committed because it did not show that he
"knowingly" possessed the hashish -- only that he voluntarily
accepted a UPS package. Section 46-5-202, MCA, requires that
an affidavit state that an offense has been committed, and
that it state facts sufficient to show probable cause for
issuance of the warrant.
It is well-settled that the evidence sufficient to
establish probable cause for a warrant is significantly less
than that required to support a conviction. All that need be
shown is "a probability of criminal conduct." State v.
McKenzie (1978), 177 Mont. 280, 290, 581 P.2d 1205, 1211.
That rigid, technical standards are inappropriate to probable
cause determinations is also evident from the United States
Supreme Court's language in the recent case of Illinois v.
Gates, No. 81-430, slip op. at 19-20 (U.S. June 8, 1983):
"As early as Locke v. United States, 7 Cranch. 339,
348 (1813), chief Justice Marshall observed .. .
that " the . term "probable cause," according to its
usual acceptation, means less than evidence which
would justify condemnation-.-.-.. It imports a
 seizure made under circumstances which warrant
suspicion.' More recently, we said that 'the
quanta-.-.-.-of proof' appropriate in ordinary
judicial proceedings are inapplicable to the
decision to issue a warrant. Brinegar, supra, 338
U.S., at 173. Finely-tuned standards such as proof
beyond a reasonable doubt or by a preponderance of
the evidence, useful in formal trials, have no
place in the magistrate's decision. While an
effort to fix some general, numerically precise
degree of certainty corresponding to 'probable
cause' may not be helpful, it is clear that 'only
the probability, - - a prima facie showing, of
and not
criminal activity - - standard of Probable
is t %
h
cause. ' Spinelli, supra, 393 U. S. , a t 419. See
Model Code of Pre-Arraignment Procedure $210.1(7)
(Proposed Off. Draft 1972); W. LaFave, Search and
Seizure, S3.2 (3)(1978) ."
Here, the affidavit established that "hashish, a
controlled substance," had been discovered in a UPS warehouse
in Hawaii addressed to defendant in Bozeman, and that, after
a controlled delivery, he had accepted the parcel from UPS in
Bozeman. The affidavit established the possession by
defendant of a controlled substance in Gallatin County. That
it did not establish "knowing" possession is not fatal to the
affidavit. It is true that without evidence that defendant
knowingly possessed the hashish, there was insufficient
evidence to convict him. State v. Smith (1983), Mont.

I P.2d , 40 St. Rep. 494. There was,
however, sufficient information to provide probable cause.
That the box contained hashish was indisputably established,
both in Hawaii and Bozeman. It was addressed to defendant.
Possession of hashish is illegal in Montana. The box
containing the hashish had been accepted by a male at the Fox
Street address and was still inside his Fox Street residence.
Defendant stresses the behavior of the police in
"orchestrating" the delivery to him, arguing that he could
not possibly have known the contents of the UPS box. But if
government officials had not seized the box and controlled
the delivery, but had discovered its contents some other way
and had merely observed the uninterrupted delivery by the
UPS, defendant's knowledge or lack of knowledge of the
contents of the box would have been no different. In either
case, defendant accepted a UPS box with hashish in it.
Whether or not he was the "unsuspecting recipient" of a
parcel of hashish addressed to him by persons unknown, as he
claims, is a question for the fact finder at trial, not to be
passed upon by the issuing magistrate.
In this case, of course, the first search warrant
uncovered far more than enough evidence, apart from the
contents of the UPS box, to convict defendant of possession
with intent to sell. Thus, it was unnecessary for the fact
finder to determine whether or not defendant was aware of the
UPS box's contents. That is not dispositive here. Clearly,
if there was probable cause for the first Bozeman search, the
second (warranted) search and seizure was also legitimate and
the evidence obtained was properly admitted.
We hold that the affidavit's failure to expressly name
the crime alleged and its failure to prove that defendant
knew the UPS box's contents did not invalidate the search
warrant. The information included in the affidavit was
sufficient to be considered a statement that an offense had
been committed and to provide probable cause for the search
warrant to issue.
Defendant argues that the affidavit was fatally
defective because it did not include the date the offense
occurred. In State ex rel. Townsend v. District Court
(1975), 168 Mont. 357, 361-62, 543 P.2d 193, 195-96, we
stated: " [Aln affidavit which omits a reference to the time
of the criminal event cannot establish probable cause . . ..
The time factor is regarded as an important element of
probable cause in order to prevent the issuance of warrants
on 'loose, vague, or doubtful bases of fact . . .. 1 I1

We find no merit in this argument. In Townsend, no
reference was made to time. Here, the affidavit shows that
the delivery was at 12:10 P.M., on either April 6 or April 7,
1981. The package had not been removed from the Fox Street
house. This small error does not create such a doubtful
basis of fact as to defeat the affidavit.
Defendant maintains that it was improper for the State
to have prepared the affidavit before the UPS delivered the
box to Kelly. It indicated that the State knew the delivery
would occur, having prearranged it. Thus the State in effect
caused the crime to occur. We do not find defendant's
argument persuasive for two reasons. First, it is more
pertinent to the issue of entrapment than to defects in the
affidavit or the warrant. Second, there is nothing
inherently wrong in drawing up an affidavit in anticipation
of an expected illegal act. It is a convenient way to obtain
a search warrant immediately after the offense occurs. Nor
are we persuaded by defendant's repeated assertions that the
State caused the possession to happen. The State merely
controlled the UPS delivery, which would have occurred in any
event. Such a controlled delivery has been upheld in Andrews

-
and Ford.
Defendant's final challenge to the sufficiency of the
affidavit is that it included hearsay and double hearsay
which formed the basis for a finding of probable cause
without satisfying the tests articulated in Aguilar v. Texas
(1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and
Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584,
21 L.Ed.2d 637, as set forth in Townsend, 168 Mont. 357, 360,
543 P.2d 193, 195-96:
 "It cannot be disputed that hearsay information may
be considered to establish probable cause. State
v. Paulson, 167 Mont. 310, 538 P.2d 339, 32 St.Rep.
--
786; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623,
10 L.Ed.27 7~ae
-r~r v. United States, 358
U.S. 307, 79 S.Ct. 329, 3 ~ X d . 2 d 327. But when
hearsay information forms the justification for a
finding of probable cause and the issuance of a
search warrant, the two-pronged test set out in
Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509,
1514, 1 2 L.Ed.2d 723, must be applied and
satisfied:
" I * * * the magistrate must be informed of some of
the underlying circumstances from which the
informant concluded that the narcotics were where
he claimed they were, and some of the underlying
circumstances from which the officer concluded that
the informant, whose identity need not be
disclosed, see Rugendorf v. United States, 376 U.S.
528, 84 S.Ct. 825, 11 ~.Ed.2d 887, was "credible"
or his information "reliable." '
"See also: Spinelli v. United States, 393 U.S.
410, 89 S.Ct. 584, 21 LXd.2d 6 7 -
3.
See also Thomson v. Onstad (1979), 182 Mont. 119, 594 P.2d

The State properly notes that while the facts in the
affidavit pertaining to the Hawaiian portion of events are
hearsay, the package in question and the drugs at issue were
seen and dealt with by the affiant himself. The events
leading up to the delivery of the drugs to the defendant were
witnessed by the affiant also. The contents of the package,
the address, and the size and shape of the package have all
been verified. The hearsay informants' facts have been
corroborated by the affiant's personal observation.
Furthermore, the affidavit establishes that neither Hisatake
nor Baba were ordinary "informants." Both were government
officials; Hisatake was a DEA officer and Baba was a federal
plant inspector. Defendant argues that because the three
officials (Green, Hisatake and Baba) were not closely
involved in an ongoing criminal investigation, and because
Baba was not a police officer, their status is relatively
insignificant. A different view is expressed in W. LaFave,
SEARCH AND SEIZURE S3.5 (a)(1978) at 619-20:
" ...[A] ' informer,' in the narrow sense of that
n
word, is by no means presumed to be a credible
person. This means that it is generally necessary,
as a prerequisite to establishing probable cause on
the basis of what the informer has told the police,
to establish that he is reliable (e.g., by showing
he has proved to be reliable on past occasions) or
that his information is reliable (e.g., by showing
that he has made an admission against his penal
interest in the course of giving the information).
By contrast, the average citizen who is thrust into
the position of being a victim of or a witness to
criminal conduct and who thereafter reports what he
saw and heard to the police is generally presumed
to be reliable, and thus no special showing of such
reliability in the particular case is necessary.
As might be expected - - may - - said of a
- the same be - -
person w h o i s a law enforcement officer.
"The point was clearly made by the Supreme Court in
United States v. Ventresca, involving a search made
pursuant to a search warrant obtained upon the
affidavit of one Mazaka, an investigator for the
Alcohol and Tobacco Tax Division of the Internal
Revenue Service. The affidavit referred to various
occasions upon which sugar and empty tin cans were
observed being carried into certain premises,
filled cans were carried out, the odor of
fermenting mash was smelled from the sidewalk in
front of the premises, and the sounds of a motor or
pump were heard coming from the direction of the
same premises. These various factual allegations
were prefaced in the affidavit with a statement
that they were based upon observations by the
affiant - 'upon information received officially
and
from other Investigators attached to the Alcohol
and Tobacco Tax Division assigned to this
investigation, and reports orally made to me
describing the results of their observations and
investigation.' Although a divided Court of
Appeals ruled this affidavit insufficient, the
Supreme Court disagreed . . ..
"Following - - - of Ventresca, lower courts have
the lead
consistently - - another - enforcement
held that law
officer - - reliable source - - consequently
is a and that
- special showing of reliability - - - - -made as a
no need be
part of the probable cause determination."
(emphasE added)
Montana has recognized a distinction between a "mere
informer" and a "citizen-informant," i.e., one who is
"motivated by good citizenship." The citizen-informant is
accepted as reliable. State v. Leistiko (1978), 176 Mont.
434, 578 P.2d 1161. We find no reason to require a showing
of reliability as to either Hisatake or Baba. Hisatake was
working for the DEA, although actually a Honolulu police
officer; while Baba was somewhere between a citizen-informant
and a police officer and also must reasonably be seen as
reliable.
In discussing the hearsay aspect, it is important to
consider the pertinent part of the application for search
warrant:
"COMES NOW RON GREEN, of the Bozeman Police
Department, and being first duly sworn upon oath,
deposes and says:
"1. That your affiant of the Bozeman Police
Department received a phone call from Harvey
Hisatake on April 3, 1981. Harvey Hisatake
identified himself as a drug enforcement agency
agent stationed in Honolulu, Hawaii;
"2. That Agent Harvey Hisatake informed your
affiant that a Federal Agricultural Inspector,
while routinely checking packages delivered to
United Parcel Service in Honolulu, Hawaii on April
2, 1981, examined a 9" x 9" x 13" package addressed
to James Kelly at an address of 1207 Fox Street,
Bozeman, Montana and with a return address of
Rosemary Kelly, 1214 Punahall Street, #210,
Honolulu, Hawaii. The Inspector examined the
contents of the package and discovered a green-like
substance which appeared to be hashish;
"3. That Agent Hisatake conducted a field test on
the substance and discovered that it was hashish, a
controlled substance. As a result, Agent Hisatake
called your affiant to inform him of his discovery.
Then, Agent Hisatake resealed the package,
rewrapped it, addressed it to your affiant and
placed in on airplane for air express delivery to
Bozeman, Gallatin County, Montana;

"5. That your affiant opened the package on April
6, 1981. He discovered five plastic packets of a
pressed green substance. Your affiant conducted a
field test and determined that the substance was
hashish, a controlled substance;
"6. That your affiant also examined the package
and observed that it was addressed to James Kelly,
1207 Fox Street, Bozeman, Montana . . .."
The defendant argues that the double hearsay problem
arises from Hisatake informing Sgt. Green that a Federal
Agricultural Inspector (unnamed) examined the package
addressed to the defendant "while routinely checking packages
delivered to United Parcel Service in Honolulu." While that
is hearsay, and can be classed as double hearsay, the test to
be applied is whether or not the information is reliable or
credible. In assessing the reliability of informer Hisatake
in particular, it is important to keep in mind that Sgt.
Green had confirmed his reliability by his personal
examination of the package, including its address, size,
shape and contents. Considering all of such information
together, we conclude that a sufficient showing has been made
of reliability as to Hisatake and the Federal Agricultural
Inspector Baba. The other prong of the Aguilar-Spinelli test
requires that there be a showing of the underlying
circumstances from which the informant concluded that the
narcotics were where he claimed they were. That has been
adequately established by the affidavit which shows that Sgt.
Green opened the package, observed the address and tested the
contents, determining the same to be hashish. This is a
clear confirmation of the informants' conclusion that the
narcotics were in the package, where they were claimed to be.
We therefore conclude that the two-pronged test of
Aguilar-Spinelli has been met and that the hearsay
information contained in the application of Sgt. Green was
sufficient to form a justification for a finding of probable
cause and issuance of the search warrant.
While we have concluded that the Aguilar-Spinelli test
has been met, we refer again to Illinois v. Gates, which is a
case decided so recently that the parties had no time to
address it in briefs or oral argument. This United States
Supreme Court decision abandons the two-pronged test
established by Aguilar-Spinelli. The Court takes a great
step away from the "labyrinthine body of judicial refinement"
built over the "prongs" and "spurs" of the Aguilar-Spinelli
tests. Slip opinion at 25.
Illinois v. Gates, the United States Supreme Court
overturned a suppression order where evidence of marijuana
and weapons possession had been obtained pursuant to a
warrant, as the result of an anonymous tip, partially
verified as to "innocent details" by a police officer. There
was no identification of the informant, and no indication of
how the informant obtained his or her knowledge. Excerpts
from the opinion, explaining the Court's rationale, follow:
"We agree with the Illinois Supreme Court that an
informant's 'veracity,' 'reliability' and 'basis of
knowledge' are all highly relevant in determining
the value of his report. We do not agree, however,
that these elements should be understood as
entirely separate and independent requirements to
be rigidly exacted in every case, which the opinion
of the Supreme Court of Illinois would imply.
Rather, as detailed below, they should be
understood simply as closely intertwined issues
that may usefully illuminate the commonsense,
practical question whether there is 'probable
cause' to believe that contraband or evidence is
located in a particular place.
"This totality of the circumstances approach is far
more consistent with our prior treatment of
probable cause than is any rigid demand that
specific 'tests' be satisfied by every informant's
tip. Perhaps the central teaching of our decisions
bearing on the probable cause standard is that it
is a 'practical, nontechnical conception.'
Brinegar v. United States, 338 U.S. 160, 176
(1949) . 'In dealing with probable cause,-.-.-.-as
the very name implies, we deal with probabilities.
These are not technical; they are the factual and
practical considerations of everyday life on which
reasonable and prudent men, not legal technicians,
act.' " Slip opinion at 15-16.
The Court concluded:
"[Ilt is wiser - abandon the 'two-pronged test'
to
established our decisions in Aguilar and
Spinelli. - - F a c e we reaffircthe
In its totalitY.of
the circumstances analysis that traditionally has
informed probable cause determinations The. . ..
task of the issuing magistrate is simply to make a
practical, commonsense decision whether, given all
the circumstances set forth in the affidavit before
him, including the 'veracity' and 'basis of
 knowledge' of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in
a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a
'substantial basis for ...
conclud[ing] that
probable cause existed.'" Slip opinion at 23
(emphasis added).
Applying the Gates test, we hold that under the totality
of the circumstances as listed above, the issuing magistrate
here had a substantial basis for concluding that probable
cause existed, and therefore conclude, on both the
Aguilar-Spinelli test and the Gates test, that the affidavit
is a sufficient basis for the issuance of the warrant.
Finally, we consider defendant's argument that he was
"entrapped" by Bozeman police and that, since entrapment was
evident from the face of the affidavit, the issuing
magistrate should not have signed the first search warrant.
Defendant argues that " [hlad it not been for the police
conspiracy to deliver sealed contraband to its unsuspecting
recipient, the police would never have been in his house to
make their 'plain view' observation of other illegal items."
There are, then, two questions involved:
a. Whether the magistrate improperly approved the first
search warrant.
b. Whether defendant's conviction must be overturned
because he was entrapped.
In State v. Kamrud (1980), Mont. , 611 P.2d
188, 190-91, 37 St.Rep. 933, 936-37, we stated:
"The entrapment defense is not a constitutional
one, as the United States Supreme Court recognized
in United States v. Russell (1973), 411 U.S. 423,
433, 93 S.Ct. 1637,1643, 36 L.Ed.2d 366, where it
held that 'the defense is not of a constitutional
dimension.' Therefore, we must look primarily to
Montana statutes and case law.
"The federal cases are nevertheless relevant to the
extent that they apply the same test used in
Montana. The Commission Comment to our statute
defining entrapment, section 45-2-213, MCA, states
 that '[tlhe defense of entrapment generally follows
the rule stated by the majority in the Sorrells
case.' (Sorrells v. United States (1932), 287 U.S.
435, 53 S.Ct. 2107 77 L.Ed. 413, 86 A.L.R. 249.)
Entrapment is, of course, an affirmative defense,
and the burden of proving it rests on the
defendant. LaCario, 518 P.2d 982, 985; State v.
White (1969), 153 Mont. 193, 456 P.2d 54, 56;
O'Donnell, 354 P.2d 1105, 1106; Parr, 283 P.2d
1086, 1089.
"This Court has held that the defense of entrapment
mav be established as a matter of law. In State v.
7

~rinfell (1977), 172 Mont. 345, 564 P.2d 171, we
overturned the defendant's conviction of sale of
dangerous drugs on the grounds that the defense of
entrapment had been established as a matter of law.
Montana has recognized the entrapment defense by
case law, and it is now codified in section
45-2-213, MCA:
'Entrapment. A person is not guilty of
an offense if his conduct is incited or
induced by a public servant or his agent
for the purpose of obtaining evidence for
the prosecution of such person. However,
this section is inapplicable if a public
servant or his agent merely affords to
such person the opportunity or facility
for committing an offense in furtherance
of criminal purpose which such person has
originated.'
"This Court has held:
'This statute is consonant with earlier
decisions of this Court which set forth
the following elements of entrapment:
(1) Criminal intent or design originating
in the mind of the police officer or
informer; (2 absence of criminal
intent or design originating in the mind
of the accused; and (3) luring or
inducing the accused into committing a
crime he had no intention of committing.
State - -
ex rel. Hamlin, Jr. v. District
Court, 163 Mont. 16, 5 1 5 7 . 2 r 7 4 ; State
- Karathanos, 158 Mont. 461, 493 P.2d
v.
326.' State - Grenfell, supra, 564 P.2d
v.
at 173.
"See also State v. Gallaher (19781, Mont.,
580 P.2d 930, 935735 St.Rep. 848."
Thus, if the evidence before the magistrate had established
as a matter of law that the three elements of entrapment were
indisputably present and therefore under section 45-2-213,
MCA, the defendant could - be guilty of the crime of
not
possession with intent to sell, the magistrate did err in
issuing the search warrant, as defendant asserts. That was
not the case, however. The magistrate knew that defendant
received and accepted a UPS package of hashish as a result of
a controlled delivery. There was no evidence before her of
any absence of criminal intent in the mind of the defendant;
nor was there any suggestion that defendant had been lured
into committing a crime he had no intention of committing.
It is true that given these requirements, it would be a rare
situation where a magistrate could find entrapment as a
matter of law at this stage. Certainly here, defendant has
not met his burden of proving that the warrant was
erroneously issued on grounds of entrapment.
Entrapment, if proven, mandates reversal of a
conviction. It does not mandate the suppression of evidence.
Here, where the evidence establishing defendant's
predisposition to commit the crime charged was seized
pursuant to a valid search warrant, it may be used to prove
that predisposition.
The first search warrant was issued upon probable cause.
The record does not establish entrapment as a matter of law.
The search uncovered very persuasive evidence that defendant
was deeply involved in large-scale drug traffic. Because
seizure of the evidence followed a legitimate search, that
evidence was admissible at trial to overcome defendant's
claim that he was entrapped. It was for the fact-finder to
decide, on the basis of evidence presented at trial, whether
defendant was not guilty because he was entrapped. In
Kamrud , Mont. at , 611 P.2d at 191, 37 St.Rep. at
937, we stated:
'Entrapment occurs only when the criminal intent
If

or design originates in the mind of the police
officer or informer and not with the accused, and
the accused is lured or induced into committing a
crime he had no intention of committing. Only when
the criminal design originates, - - -not with the
accused, - - - -mind of government officers -
but in the - and
the
- accused 5 2 persuasion, deceitful
representations, - inducement, lured - -
or into the
 commission a criminal - - a case -
act, can of
made -
- out. In short. t T e r a s a
tinction between induc .ng a person
to do an unlawful act and setting a trap to-catch
him in the execution of a criminal design of his
own conception . .. State v. Karathanos (1972),
158 Mont. 461, 493 P.2d : 6
23 331 (holding that
there was no entrapment where the defendant
approached a police informant in a bar and offered
to sell her drugs, later completing the
transaction)." (emphasis added)
Defendant's "crime" was not his acceptance of the box of
hashish, as he insists; it merely provided probable cause to
believe he knowingly possessed dangerous drugs with intent to
sell. The evidence of defendant's crime of possession with
intent to sell was properly, and convincingly, admitted at
trial to defeat his affirmative defense of entrapment and
prove that he was indeed "caught in the execution of a
criminal design of his own conception."
Affirmed.

We concur:

Chief Justice
Justices

Mr. J u s t i c e D a n i e l J . Shea d i s s e n t s and w i l l f i l e a
written dissent later.
Mr. J u s t i c e Frank B. M o r r i s o n , J r . , w i l l f i l e a s e p a r a t e
opinion l a t e r .
Mr. Justice John C. Sheehy, dissenting:

I dissent.
The general rule is that a warrantless search,
administrative or otherwise, is illegal. Camara v. Municipal
Court (1967), 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.
An exception to the general rule was carved in United States
v. Schafer (9th Cir. 1972), 461 F.2d 856. It is necessary to
examine the facts of the Schafer case to determine why the
circuit court made an exception to the general rule.
Terry Lee Schafer was a departing passenger on an
airline out of Hawaii. Her handbag was searched when she
presented herself at the airport for departure. In her
handbag was found a quantity of LSD pills. The search was
made by federal authorities pursuant to federal statutes
which prevent the transportation from Hawaii of certain
quarantined agricultural substances which might spread
disease or other injurious effects in the continental United
States. The Secretary of Agriculture had adopted a
regulation which expressly provided that "[all1 baggage and
other personal effects of passengers" were to be searched at
airports pursuant to the federal law. 7 C.F.R.
§ 318.13-12 (a) . In Schafer, therefore, the Ninth Circuit
Court of Appeals was impressed by the fact that there was an
express provision of federal administration regulation that
required the search of all baggage or other personal effects
of all departing passengers. The Secretary's power to make
such a regulation was founded on 7 U.S.C. § 150 (eel and 162.
The Ninth Circuit Court of Appeals upheld this warrantless
search because it applied to all persons, was founded on an
express regulation, and the exigency of a departing passenger
made the time necessary to procure a search warrant
impractical and would render nugatory the desired goal of
preventing quarantined articles from reaching the continental
United States.
Contrast the situation in Schafer with that which
occurred here. We have a package resting in the United
Parcel Service receiving room in a town in Hawaii. The agent
in this case does not search - packages.
all The field officer
is given discretion as to which of the packages he will
search. In this case he conducted admittedly a "random"
search. The field official testified that no searches were
ever conducted on packages received at UPS in the afternoon.
In fact, he came to the UPS office during the lunch hour,
when the conveyor belt in the UPS office was stopped, and
inspected some twelve packages of the unspecified number on
the belt. He based his inspections solely on the weight of
the packages, after eliminating any packages going between
business or mail order addresses. Why he made that
distinction he did not specify in his testimony. No reason
was shown in his testimony why he had to seize the package
here without a search warrant. His inspection of the package
in question revealed no plants bearing diseases or other
substances which might injuriously affect crops in the
continental United States.
The evidence reveals no exigency existing which would
prevent him from procuring a search warrant. The same line
of reasoning applies to officer Hisatake, to whom Baba, the
federal official, turned over the opened package. Certainly
no exigency existed as to Hisatake, who should have procured
a search warrant before seizing the property reported to him
by Baba.
 What the majority has done in this case is to bootstrap
the narrow Schafer exception to Camara into a now general
rule that any intrusion by a federal official or a state
official into packages in commerce without a warrant is
permissible, provided that some federal statute allows the
federal agent a right of inspection. The majority has
carried Schafer too far.
The search by Baba was illegal, because no probable
cause existed for him to suspect that the package in question
contained quarantined substances; it was illega.1 as to
Hisatake, because there was no exigency existing which would
prevent him from procuring a search warrant to seize the
property discovered by Baba.
A strong factor on which the Ninth Circuit Court upheld
the search in Schafer was that the decision to inspect was
not subject to the discretion of the official in the field,
relying on Camara, 387 U.S. at 532, 87 S.Ct. at 1733, 18
L.Ed.2d at 937.
Since the seizure was illegal in its inception, all
other evidence uncovered by the prosecution after the illegal
seizure should have been suppressed by the District Court.
Then there is the question of entrapment in this case.
Our statute defining the crime of possession of dangerous
drugs with intent to sell has an inherent peculiarity.
Section 45-9-103, MCA. The permissible sentences under the
crime are heavier than for mere possession of dangerous
drugs. Section 45-9-102, MCA. The code compiler lists these
elements as necessary to a conviction for criminal possession
of dangerous drugs with intent to sell: (1) knowing (2)
control of a (3) dangerous drug for a sufficient time to be
able to terminate control, as well as (4) intent to sell the
drug. Since the package here was seized in the Kelly home
unopened, in the same condition as delivered, there is no
evidence in this case upon which Kelly's conviction can he
founded, since none of the elements of the crime could be
proved beyond a reasonable doubt.
It is idle to recite as the majority recites, that it is
for the fact finder to determine entrapment in this case.
There were no facts for the fact finder to find. Kelly had
done nothing but receive from the officers here a package
they had delivered to him containing drugs. It is on the
receipt alone that the conviction here is founded. His
knowing control of a dangerous substance, and his intent to
sell the same are completely absent from the evidence.
My conclusion is that the power of federal agricultural
agents to inspect packages in Hawaii for quarantined plants
and insects is being used by law enforcement as an instrument
to get into homes otherwise out of their purview. We have
developed some strange philosophies about drugs and privacy.
The law permits a man to watch lewd movies in his home to his
heart Is content. I find that detestable. The law does not
permit a man to use drugs in the privacy of his own home. I
find drug use also detestable, but I am unable to distinguish
the legal concepts that differentiate the privacy rights of
the drug user from the lewd-movie watcher. But even where
the law is being violated, there are privacy rights in a home
which the courts ought to protect as sacred. The federal
officer here, Baba, found no violation of the law he was
empowered to enforce. Hisatake, the Hawaiian Five-0, without
a warrant, took the package out of the stream of commerce to
readdress the package. Hisatake reinserted the package into
commerce in a scheme designed to get the Bozeman officers
into the Kelly home. Every step of those actions was
unlawful. I won't condone it.
The officers in this case testified they had no claim
that Kelly mailed or had caused to be mailed the package to
himself. His conviction rests simply on the package
delivered to him by the officers, addressed to him by them,
and originally sent into commerce by an unknown and
unidentified person. Kelly's possession is at most
constructive only.
Do you have an enemy you would like to frame? Buy
yourself an airline ticket to Hawaii and while there round up
some marijuana, place it in a heavy package addressed to your
enemy but not otherwise conspicuous and deliver it to UPS,
but be sure to deliver it in the morning. Chances are it
will be randomly opened by someone named Baba who in turn
will turn it over to the authorities to make certain that it
is delivered to your enemy. Our law enforcement officers
will see to it that he is tailed, nailed and jailed. His
mere possession of the package will be enough, with the
blessing of this Court.
In speaking of entrapment, I refer only to the drugs
contained in the package. The other drugs and paraphernalia
seized in the home may have independently sustained a
conviction in a proper case, but here they are tainted by the
illegal entry of the officers into the Kelly home.