State v. Olson

No. 14306

I N THE SUPREME CDUFD OF THE STATE OF MONTANA

1978

STATE OF ~ N T A N A I

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

-vs-

JAhTE A. OLSON and KEVIN R. RAY,

Appzllants and Defendants.

Appeal from: D i s t r i c t Court of the Sixth Judicial D i s t r i c t ,
Honorable N a t Allen, Judge presiding.

Counsel of Record:

For Fppellants:

Goetz and Madden, Bozeman, Mntana
J m s H. Goetz argu&, Bozesnan, bWntana
a e

For Amicus Curiae:

Hon. Mike Greely, Attorney General, Helena, Mntana
Denny bWreen argued, Assistant Attorney General, Helena, bWntana
For Respoladent:

Jack Yardley, County Attorney, Livingston, bWntana

Suhitted: October 24, 1978

-id&: '>d 13 1979
4
Filed: .jAN 1 5
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Defendants, Jane A. Olson and Kevin R. Ray, appeal from
their conviction under section 54-133, R.C.M. 1947, possession
of less than sixty grams of dangerous drugs, by the Park
County District Court.
While answering a routine call, Officer Bryce of the
Livingston, Montana Police Department passed along an alley-
way by defendants' residence and thought he smelled burning
marijuana coming from the home. He walked to the front
door, knocked and was greeted by defendant Jane Olson. As
later stated in his application for a search warrant, the
officer again detected the "identifiable odor of marijuana"
emanating from the open door and on the clothing of defendant
Olson. After obtaining a search warrant, the officer
returned to search defendants' residence and discovered a
small quantity of marijuana, some marijuana seeds, plants
and related paraphernalia. Defendants, who both acknow-
ledged living there, were charged with misdemeanor possession
of dangerous drugs. They pleaded not guilty.
At pretrial hearing, defendants moved to dismiss the
charges alleging violation of their constitutional right to
privacy under the Montana and United States Constitutions.
Defendants also moved to suppress the evidence seized,
on the ground the officer's purported smell of marijuana was
insufficient probable cause for issuance of a search warrant.
The District Court denied both motions.
Trial by the court sitting without a jury found the
defendants guilty and fined $500.00 each, payable within
sixty days of judgment. A stay of execution was granted
pending the outcome of this appeal.
Defendants raise two issues for our review:
1. Whether smelling marijuana smoke is sufficient, in
and of itself, to establish probable cause for the issuance
of a search warrant?
 2. Whether the privacy provisions of the Montana and
United States Constitutions preclude intrusion into the home
of defendants to seize a small quantity of marijuana?
We address only defendants' first issue since it is
determinative of the case before this Court.
The statutory provisions on search and seizure provide
in part:
.
". . A search of a person, object or
place may be made and instruments, articles
or things may be seized in accordance with
the provisions of this chapter when the
search is made:

"(c) By the authority of a valid search
warrant." Section 95-701, R.C.M. 1947.
and :

"Grounds for search warrant. Any judge may
issue a search warrant upon the written
application of any person, made under oath
or affirmation before the judge, which:
''(1) states that an offense has been
committed;
" (2) states facts sufficient to show
probable cause for issuance of the warrant;
" (3) particularly describes the place or
things to be search; and
" (4) particularly describes the things to
be seized." Section 95-704, R.C.M. 1947.
The validity of Officer Bryce's search in this case
rests squarely upon whether his affidavit "states facts
sufficient to show probable cause for issuance of the warrant."

Only the officer's sworn application was before the magistrate;
therefore, our inquiry must be confined to the facts stated
in the application. State v. Leistiko (1978), Mont .
, 578 P.2d 1161, 1163, 35 St.Rep. 590, 592; petition of
Gray (1970), 155 Mont. 510, 519, 473 P.2d 532, 537.
The State maintains that due to the "presumed imparti-
ality" of the magistrate's decision on application for a
search warrant and the additional protection thereby afforded

the rights of citizens, the circumstances under which a
judge may issue a search warrant are necessarily different
from those which justify a warrantless search by a police
officer embroiled in an allegedly criminal situation. This
Court has, of course, recognized the distinction:
". . . when a search is based upon a magistrate's
rather than a police officer's, determination of
probable cause, the reviewing courts will
accept evidence of a less 'judicially competent
or persuasive character than would have justified
an officer in acting on his own without a warrant,'
. .. and will sustain the judicial determination
so long as 'there was substantial basis for [the
magistrate] to conclude that narcotics were
probably present . .. II1State ex rel. Glanz
v. Dist. Court (1969), 154 Mont. 132, 136, 461 P.2d
193, 196. (Quoting Aguilar v. Texas (1964), 378 U.S.
108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723,
726.)
We note, however, that although "less 'judicially competent
or persuasive'" evidence is required, the magistrate must
base his finding upon competent evidence sufficient to
enable the magistrate to form his own independent conclusion.
In State ex rel. Townsend v. Dist. Court (1975), 168 Mont.
357, 360, 543 P.2d 193, 195, we stated:
"The requirement that the magistrate decide
the existence of probable cause on the basis
of facts sufficient to allow an independent
determination, is imposed by Montana law to
ensure that some neutral and detached evaluation
is interposed between those who investigate
crime and the ordinary citizen. This principle
was discussed in ~ohnsonv. United States, 333
U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, 440:
"'The point of the Fourth Amendment, which often
is not grasped by zealous officers, is not that
it denies law enforcement the support of the
usual inferences which reasonable men draw
from evidence. Its protection consists in
requiring that those inferences be drawn by
a neutral and detached magistrate instead of
being judged by the officer engaged in the
often competitive enterprise of ferreting out
crime. 'I
Under the facts here, the officer's delay in obtaining a
search warrant rather than arresting and searching on the
spot, adds nothing to the evidentiary basis necessary
to establish probable cause. The requirement of competent
evidence must be satisfied. We hold that it was not.
The magistrate was presented with a search warrant
application based exclusively on Officer Bryce's purported
smell of marijuana smoke. His affidavit only stated that he was,
from experience, familiar with the fragrance of marijuana
and that he detected the aroma on the clothing of defendant
Olson and also emanating from the defendants' residence.
The smell of marijuana is however, insufficient probable
cause to justify a warrantless search of an automobile. In
State v. Schoendaller (1978), Mont. , 578 P.2d
730, 35 St.Rep. 597, this Court stated:
"The police conducted their warrantless
search on the basis of ' . . . a strong odor
of marijuana in the car along with that
of s r i incense of something .
ore . . ' and
lacking any exigent circumstances, such
perception falls closer to the realm of
bare suspicion than probable cause. We
do not deny police officers the right
to rely on their sense of smell to confirm
their observations. However, to hold that
an odor alone, absent evidence of visible
contents, is deemed equivalent to plain
view might very easily mislead officers
into fruitless invasions of privacy where
there is no contraband." 578 P.2d at 734,
35 St.Rep. at 602.
There are even more compelling reasons for concluding
that smell alone is not sufficient to justify the invasion
of the privacy of one's home. While we do not intend to
discourage aggressive and lawful investigation by the
police, we conclude that the information thus obtained,
the odor of burning marijuana, does not by itself establish
probable cause to issue a search warrant. The evidence
seized must, accordingly, be suppressed.
Based on our holding, it is not necessary to discuss
another aspect of the requirement of probable cause--
 whether the magistrate was provided with sufficient facts
to believe the officer's smell of marijuana was reliable.
Nor do we reach the defendants' contention that the privacy
provisions of the Montana and United States Constitutions
preclude intrusion into the home of defendants to seize a
small quantity of marijuana.
The judgment of the District Court is reversed, and the
cause ordered.dismissed.

P+J-~ ice

We Concur:

L
Chief Justice

d Justices