State v. O'NEILL

No. S3-421
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
PATRICK LEO O'NEILL,
Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Marc F. Racicot, Special Deputy County Attorney
for Gallatin County, Helena, Montana

For Respondent :
Moses Law Firm; Michael G. Moses, Billings,
Montana
Michael Stepanian, San Francisco, California

Submitted on Briefs: November 23, 1983

Filed:

Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.

This case comes on appeal from an order of the
District Court, Eighteenth Judicial District, Gallatin
County, granting defendant's motion to suppress evidence
seized pursuant to a search warrant. We reverse the
decision of the District Court.
In March of 1982, Federal Bureau of Investigation
Special Agent Bernard F. Hubley, assigned to the resident
agency in Bozeman, Montana, initiated an investigation
regarding the violation of state and federal narcotics laws
by defendant O'Neill and his associates. During the course
of his investigation Agent Hubley accumulated certain pieces
of information which he determined warranted a search of
O'Neill's residence. Accordingly, Agent Hubley obtained a
search warrant based upon the following information
contained in his affidavit of probable cause in support of
the search warrant:
Agent Hubley learned that in 1975 0'Neill had pled
guilty in California to charges arising from the
transportation and possession of 640 pounds of marijuana.
On September 28, 1982, Agent Hubley also learned from a
Bozeman police detective that in 1977 O'Neill had delivered
some laundry to a Bozeman laundromat for cleaning and the
laundry contained 347 grams of marijuana. In addition to
the information concerning the marijuana, Agent Hubley
learned from another Bozeman police officer that on November
19, 1978, the detective had interviewed an informant named
R.S. who had stated he had obtained cocaine from O'Neill in
November of 1978 and that O'Neill had had a large quantity
of cocaine at his residence.
On June 26, 1982, a confidential informant, herein
referred to as Informant No. 1, told Agent Hubley that a
cocaine party had been held at O'Neillls residence located
in Bridger Canyon on the evening of June 25, 1982.
Informant No. 1 told Hubley that the cocaine party had been
in celebration of OtNeill's selling his restaurant in
Bozeman and that Informant No. 1 had personally observed
O r N e i l l distribute cocaine to a number of individuals
present at the party. Informant No. 1 also identified a
number of individuals present at the party while O'Neill
distributed the cocaine. Hubley stated that Informant No. 1
had provided reliable information in the past; specifically,
that he had identified a street dealer of cocaine and made
purchases under Hubley's direction and supervision on two
separate occasions. Hubley also indicated that one of the
two cocaine sources had distributed to other individuals in
the past. Hubley also indicated that individuals Informant
No. 1 identified as associates of O'Neill were, in fact,
associating with him.
In May of 1982 a second confidential informant, herein
referred to as Informant No. 2, told Hubley that he was
personally acquainted with OtNeill and that O'Neill was
associating with an individual named "Cody who was
living in a rental house in Big Sky, Montana. Through
independent investigation Hubley determined "Cody Madden's"
residence and telephone number. Further investigation
revealed to Hubley that a number of telephone calls were
made from "Cody Maddenrs" house to a telephone in the name
of L.J. Zimmerman located at 15325 Bridger Canyon Road.
Informant No. 1 told Hubley that he had personally observed
the telephone number in O'Neill's residence and that this
was the same number listed under the name of L.J. Zimmerman.
Hubley had observed mailboxes near O'Neill's residence
bearing addresses in the 15000's.
Through contact with the Baltimore division of the
F.B.I., Hubley learned that "Cody Madden" was an alias used
by James Patrick Fitzgibbons a fugitive from justice having
been indicted by federal authorities on May 26, 1982, for
conspiracy to distribute cocaine and distribution of
cocaine. A cash bond of $500,000 had been requested for
Fitzgibbons. During the six months prior to the date the
search warrant was issued, Informant No. 1 and Informant No.
2 identified a photograph of Fitzgibbons as being the
individual they knew as "Cody Madden."
Two days prior to the search of O'Neill's residence,
Informant No. 1 told Hubley that O'Neill and his associates
had made comments to Informant No. 1 to the effect that
"Cody Madden" was coming to Bozeman. On October 16, 1982,
Informant No. 1 told Hubley he had seen "Cody Madden" at
OINeill's residence. Informant No. 1 also stated that he
had smelled marijuana at the residence at that time.
Hubley used the foregoing information in his aff idavit
for probable cause and request on October 16, 1982, for a
search warrant for O'Neill's residence.
Hubley was unsuccessful in locating either a federal
magistrate or a state district court judge to sign the
application for search warrant. On the evening of October
16, 1982, Hubley made contact with Justice of the Peace
Norma Schmall who read the application and issued the search
warrant. The search warrant stated that there was probable
cause to search for Fitzgibbons at O'Neill's residence in
addition to "cocaine, marijuana, and .. . instrunents used
in administering the narcotics including, roach clips,
papers, cocaine spoons, mirrors .. . as well as containers

During the execution of the search warrant, items
other than those listed in the warrant were seized,
including numerous jars of psilocybin, a cocaine grinder,
smoking devices, drug packaging materials, vials, a vial
loader with a screen, a hypodermic needle, a scale and drug
records.
On December 20, 1982, O'Neill moved to suppress all
evidence seized in the October 17, 1982 search of his
residence. In making his motion, O'Neill argued that (1)
the search warrant was issued without probable cause; (2)
there was no authority to issue the search warrant for the
purpose of making an arrest; (3) the information in the
search warrant was stale; and (4) O'Neill's right to privacy
had been violated. In addition, 0'Neill argued that the
drug records seized should be suppressed because they were
not within the scope of the "plain view" doctrine.
A suppression hearing was held on June 9, 1983 and on
July 15, 1983 the District Court ordered that all evidence
seized in the search of OINeill's residence be suppressed.
The District Court held that the search for marijuana and
cocaine was not based upon probable cause. Specifically,
the District Court determined the dates on which the search
warrant alleged O'Neill possessed and distributed cocaine
were not close enough in time to the day on which the search
occurred. In addition, the District Court held that
Informant No. 1's statement that he smelled marijuana at
OINeilllsresidence on the same day the search warrant was
executed was not enough to establish probable cause.
Finally, the District Court ruled that there was probable
cause to search for Fitzgibbons but once it had been
determined that Fitzgibbons was not on the premises the
search should have ended and any evidence seized after that
determination was made would be suppressed.
Initially, the State argues that the District Court
erred in holding that the search warrant was not based upon
probable cause.
The probable cause requirement for the issuance of a
seach warrant is found in the Fourth Amendment to the United
State Constitution: " . . . no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
person or things to be seized," and in Article 11, Section
11 of the Montana State Constitution: ". . . No warrant to
search any place, or seize any person or thing shall issue
without describing the place to be searched or the person or
thing to be seized, or without probable cause, supported by
oath or affirmation reduced to writing." When a search
warrant has been issued, the determination of probable cause
must be made solely from the information given to the
impartial magistrate and from the four corners of the search
warrant application. State v. Isom (1982), 196 Mont. 330,
641 P.2d 417; Thomsom v. Onstad (1979), 182 Mont. 119, 594
P.2d 1137. An affidavit supporting a search warrant is to
be interpreted by the magistrate and examined by the
reviewing court in a common sense, realistic fashion and
without a grudging or negative attitude that will tend to
discourage police officers from seeking warrants. United
States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13
L.Ed.2d 684. Ventresca also requires reviewing courts to
avoid hypertechnical interpretations of warrant applications
and, in doubtful or marginal cases, to resolve the issue
with the preference for warrants in mind. 380 U.S. at 108.
The issuing magistrate must only determine that there
is a probability, not a prima facie showing of criminal
activity. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223,
13 L.Ed.2d 142. The application for search warrant in the
present case contained information that would have indicated
to the magistrate that there was a fair probability that
either contraband or Fitzgibbons were in a particular place.
The affidavit stated that in 1975 the respondent had
allegedly been arrested for possession of 640 pounds of
marijuana. In 1977, 347 grams of marijuana had allegedly
been found in respondent's laundry. In 1978, an informant
had advised law enforcement officials that respondent
possessed a large quantity of cocaine and had distributed it
to the informant. In January and February of 1982, the
respondent had been associating with James Patrick
Fitzgibbons who became, in May 1982, a fugitive from
justice, wanted for conspiracy to distribute and
distribution of cocaine. In June, 1982, law enforcement
officials had learned that the respondent distributed
cocaine to a number of people at his residence. Two days
before the respondent's home was searched a confidential
informant advised Agent Hubley that Fitzgibbons was coming
to Bozeman. On October 16, 1982 the confidential informant
had observed Fitzgibbons at the respondent's residence on
two occasions and had reported the odor or marijuana
emanating in the house on one of those occasions.
Thereafter the magistrate determined that there was probable
cause and signed the search warrant.
In Illinois v. Gates (1983), U.S. , 103 S.Ct.
2317, 76 L.Ed.2d 527, the Court said:
". . . we affirm the totality of the
circumstances analysis that has
traditionally informed probable cause
determinations. [citations omitted]. The
task of the issuing magistrate is simply
to make a practical, common-sense
decision whether, given all the
circumstances set forth in the affidavit
before him, including the 'veracity1 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 the reviewing
court is simply to ensure that the
magistrate had a 'substantial basis for .
. . concluding' that probable cause
existed." Gates, supra, 103 S.Ct. at
2332, 76 L.Ed.2d at 548.
In the case at bar, the totality of the circumstances
recited in the affidavit provided the issuing magistrate
with a substantial basis for concluding that probable cause
existed. The District Court erred in holding otherwise.
The evidence collected by the law enforcement officials must
be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of
law enforcement. United States V. Cortez (1981), 449 U.S.

In short, the quantity of information presented to the
magistrate and the common sense evaluation of that
information leads to the conclusion, as stated by the United
States Supreme Court in Gates, that there was a fair
probability that contraband or Fitzgibbons would be found in
respondent's residence. The respondent's previous drug
related activities; the informant's information concerning
cocaine distribution; the informant's information concerning
the smell of marijuana at respondent's residence; and the
informant's tip that a fugitive from justice wanted for
distribution and possession of cocaine was present at
respondent's residence are facts and circumstances described
in the affidavit that indicated a fair probability that
evidence of a crime was in a particular place. That is all
that need be shown to establish probable cause. State v
McKenzie (1978), 177 Mont. 280, 581 P.2d 1205.
The District Court correctly noted that in Sta.te v.
Olson (1979), 180 Mont. 151, 589 P.2d 663, this Court stated
that the odor of burning marijuana does not, by itself,
establish probable cause to issue a seach warrant. However,
that is not the situation in the case at bar. In State v.
Means (1978), 177 Mont. 193, 581 P.2d 406, this Court said
that the odor of marijuana, together with other facts
tending to establish probable cause, is sufficient
justification for an officer to enter a residence for the
purpose of effecting a search.
The District Court also based its decision on the fact
that the references to respondent's possession of cocaine in
the application for a search warrant did not occur
sufficiently close in time to the date on which the warrant
was issued. However, in United States v. Johnson (10th Cir.
1972), 461 F.2d 285 the court addressed the issue of
"staleness" stating:
 "Where the affidavit recites a mere
isolated violation it would not be
unreasonable to imply that probable cause
dwindles rather quickly with the passage
of time. However, where the affidavit
properly recites facts indicating
activity of a protracted and continuous
nature, a course of conduct, the passage
of time becomes less significant."
Johnson, supra, 461 F.2d at 287.
The repeated alleged possession and distribution of
dangerous drugs over a number of years, including marijuana
and cocaine; the information provided by the informants; the
presence of a fugitive wanted for cocaine at respondent's
residence; and the evidence of drug possession and use on
the day of the search, all of which were alleged in the
warrant application, established a fair probability that
respondent was engaged in dangerous drug activities of a
continuous and protracted duration. As such, the issuing
magistrate had a substantial basis for concluding that James
Partick Fitzgibbons, dangerous drugs, particularly marijuana
and cocaine and related paraphenalia, were all present at
respondent's residence. It is important to note that
after-the-fact scrutiny by the reviewing court of the
sufficiency of an affidavit should not take the form of -
de
novo review. Gates, supra, 103 S.Ct. at 2331, 76 L.Ed.2d at
547. A magistrate's "determination of probable cause should
be paid great deference by reviewing courts." Spinelli v.
United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d
637. Thus, the court in State v. Wieglus (S.D. 1979), 278
N.W.2d 805 stated: "Bearing in mind the general rule that
every reasonable inference possible should be drawn to
support the determination of probable cause made by the
magistrate, (cite omitted) we conclude that the magistrate
could properly have inferred that defendants were engaged in
an ongoing series of drug transactions . . ."
The respondent also argues that the affidavit of
probable cause became "stale" once the determination was
made that Fitzgibbons was not present at the residence. The
District Court held that probable cause existed to search
for Fitzgibbons but once it had been discovered he was not
there all reasons to be in the premises ceased. Thus,
according to the District Court, all evidence seized after
that point, including the alleged drug records, had to be
suppressed.
Initially, we note that the burden of proving that the
search and seizure were unlawful shall be on the defendant.
Section 46-13-302(4), MCA. The parties agreed that
Fitzgibbons was not arrested as a result of the search of
the residence but there is no indication in the record that
Fitzgibbons was not present in the initial stages of the
search. There is also no indication in the record
pertaining to when the items not mentioned in the search
warrant were discovered--whether it was before, after or
during the search for Fitzgibbons. Accordingly, items
seized in the search should also have been admissible under
the "plain view" exception to the warrant requirement
pursuant to the execution of the search warrant for
Fitzgibbons. Items not described in a warrant may be seized
under the plain view doctrine where: (1) there is prior
justification for intrusion in the protected area; (2) the
articles are in plain view; (3) incriminating nature of the
articles is apparent; and (4) the discovery of the articles
was inadvertent. Coolidge v. New Hampshire (1971), 403 U.S.
443, 91 S.Ct. 2022, 29 L.Ed.2d 564. The respondent argues
that the alleged drug records do not fall within the plain
view exception to the search warrant requirement because the
officers read the records. Once the officers began to read
the drug records, respondent asserts, the search was no
longer for narcotics or for a person but, rather, for
written records.
Initially, we note that Agent Hubley testified at the
suppression hearing that the rooms in which the alleged drug
records were seized were in a disheveled condition with
papers and objects strewn about. Agent Hubley also stated
that the alleged drug records were inadvertently observed,
determined to be related to the items specified in the
warrant and to have obvious evidentiary value without
touching them, picking them up or rifling through them in
any way. In addition, Agent Hubley testified drug records
are frequently found during searches for narcotics.
In State v. Kelly (Mont. 1983), 668 P.2d 1032, 1038,
40 St.Rep. 1400, 1405, this Court said:
"The Supreme Court's recent decision in
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.
(Emphasis added) Brown also relaxes rule
(3) stated [in Coolidge]. 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.'"
Thus, a suspicion that the objects viewed are evidence or
instrumentalities of a crime is sufficient to statisfy the
requirement that the incriminating nature of the articles be
apparent. When the objects inadvertently perceived to be
"suspicious" by police officers are drug records or other
documents, clearly the officers should not be prevented from
reading what is on them as long as the search does not
include a detailed inspection of the objects or a violation
of a reasonable expectation of privacy. The situation in
the present case is similar to that in State v. Meader
(Mont. 1979), 601 P.2d 386, 36 St.Rep. 1747, where the
officers had to read the numbers on license plates to
determine their evidentiary value. Also, in State v. Quigg
(1970), 155 Mont. 119, 467 P.2d 692, this Court said: "That
items or things other than those described in the warrant
may be seized is clear so long as a reasonable relationship
between the search authorized by the warrant and the seizure
of the thing not described is demonstrated." In State v.
Turner (1977), 18 Wash.App. 727, 571 P.2d 955, the court
said: "Evidence not described in a warrant, and not
constituting contraband or instrumentalities of a crime, may
be seized if it will aid in a particular apprehension or
conviction, or if it has sufficient nexus with the crime
under investigation." The suspicious nature of the alleged
drug records in this case was apparant, their discovery did
not increase the scope of the search and they bore a
sufficient nexus with the crime under investigation. Thus,
the seizure of those records was lawful.
The respondent also asserts his constitutional right
of privacy was violated through the commission of a trespass
by Informant No. 1. Specifically, respondent argues that
when Agent Hubley advised Informant No. 1 to verify
Fitzgibbons' presence at respondent's residence, Informant
No. 1's subsequent entry into respondent's residence

violated respondent's r i g h t of p r i v a c y . Respondent r e l i e s
upon S t a t e v . Hyem (Mont. 1 9 8 1 ) , 630 P.2d 202, 38 St.Rep.

8 9 1 , and S t a t e v. Van Haele (Mont. 1 9 8 2 ) , 649 P.2d 1 3 1 1 , 39
St.Rep. 1586, i n s e e k i n g s u p p r e s s i o n o f a l l evidence r e l a t e d
t o that alleged violation.
Initially, we note the informant did not take any

evidence from r e s p o n d e n t ' s residence. Moreover, when the
r e s p o n d e n t a l l e g e s t h a t t h e e v i d e n c e t o b e u s e d a g a i n s t him

is a f r u i t o f a p r i o r i l l e g a l i t y , h e h a s t h e i n i t i a l b u r d e n
of e s t a b l i s h i n g a n u n c o n s t i t u t i o n a l i n t r u s i o n and a f a c t u a l

nexus between the intrusion and the challenged evidence.
U n i t e d S t a t e s v . Kandik ( 9 t h C i r . 1 9 8 0 ) , 6 3 3 F.2d 1 3 3 4 . The

respondent d i d n o t p r e s e n t any competent e v i d e n c e s u p p o r t i n g
h i s a l l e g a t i o n t h a t t h e e v i d e n c e was t a i n t e d .

Finally, respondent asserts that a law enforcement
o f f i c e r c a n n o t o b t a i n a s e a r c h w a r r a n t i n Montana f o r t h e

purpose of seaching f o r and s e i z i n g a p e r s o n u n l e s s that
person h a s been kidnapped. Respondent p o i n t s t o Section

46-5-203, MCA w h i c h p r o v i d e s :

"What may b e s e i z e d w i t h w a r r a n t . A
s e a r c h w a r r a n t may a u t h o r i z e t h e s e i z u r e
of t h e following:
(1) c o n t r a b a n d ;
( 2 ) any instruments, a r t i c l e s , o r
t h i n g s which a r e t h e f r u i t s o f , have been
u s e d i n t h e c o m m i s s i o n o f , o r may
c o n s t i t u t e evidence of any o f f e n s e ;
( 3 ) a n y p e r s o n who h a s b e e n k i d n a p p e d
i n a n o t h e r j u r i s d i c t i o n a n d i s now
concealed within t h i s s t a t e . "

I n S t e a g a l d v. U n i t e d S t a t e s ( 1 9 8 1 ) , 449 U.S. 819, 1 0 1 S.Ct.
7 1 , 66 L.Ed.2d 21, t h e U n i t e d S t a t e s Supreme C o u r t h e l d ". .
. t h a t t h e e n t r y i n t o a home t o c o n d u c t a s e a r c h o r m a k e a n
arrest is unreasonable under the Fourth Amendment unless
done pursuant to a. warrant." Steagald, supra, at 211. In
the application for search warrant, information concerning
Fitzgibbons is set forth including the fact that a federal
warrant had been issued for his arrest. Since Fizgibbons
was determined to be in respondent's home, the holding in
Steagald required that the police obtain a search warrant
before entering the respondent's residence to arrest
Fitzgibbons pursuant to the federal arrest warrant. "[Iln
terms that apply equally to seizures of property and to
seizures of persons, the Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent
circumstances, that threshold may not be crossed without a
warrant." Payton v. New York (1980), 445 U.S. 573, 100
S.Ct. 1371, 63 L.Ed.2d 639. The law enforcement officers
here were obliged to proceed not only in compliance with
statutory requirements but also with federal constitutional
mandates. Even though Section 46-6-104(3), MCA and Section
46-6-401(3), MCA would have statutorily allowed an entry
into the respondent's home to arrest Fitzgibbons without a
search warrant, the law enforcement officials were compelled
to comply with the more stringent constitutional
requirements of Steagald and obtain a search warrant.
The order of the District Court is vacated and the
cause remanded for further proceedings.
We concur:

8 4 4 d $bk4,,0D
Chief Justice